Appeal from the Circuit Court of Kane county; the Hon. CASSIUS
POUST, Judge, presiding. Reversed, and judgment entered here.
JUSTICE CROW DELIVERED THE OPINION OF THE COURT.
Rehearing denied November 20, 1956.
This is an appeal in a garnishment action from a judgment entered by the Circuit Court of Kane County, finding the issues in favor of the garnishee-defendant, Hartford Accident & Indemnity Company, a corporation. The action was brought for the use of Bernard Kelley, a minor, by his mother and next friend, against the garnishee-defendant, to collect a final judgment in the sum of $16,000, theretofore entered in the Circuit Court of Kane County, in a prior personal injury action brought by the minor, by his mother and next friend, against William G. Konrad, public administrator of the estate of Robert Lyle Jones, deceased, the administrator being the nominal plaintiff in this garnishment action for the use of Bernard Kelley. It is based upon an insurance policy issued by Hartford Accident & Indemnity Company, garnishee-defendant, to cover all vehicles of the Q Candy and Cigar Co., a corporation, the named insured, which was the employer of Robert Lyle Jones.
There is no dispute about the essential facts. There was a stipulation in this garnishment action that the transcript of the testimony in the prior personal injury action might be introduced in evidence in this case, that the insurance policy might be introduced, and that it covered the truck in question, subject to the terms and conditions of the policy, that the pleadings in the prior personal injury case might be introduced, and that certain other facts were agreed. From the stipulation it appears that Robert Lyle Jones, the deceased, was hired by the Q Candy and Cigar Co., a corporation, of Aurora, by its president, Edward Baratz; that he was hired approximately ten days prior to the date of the accident; for the first nine or ten days a supervisor went with the deceased on the route instructing him in his duties; at the time the deceased was hired he was informed by Mr. Baratz that at the end of the training period if he was satisfactory he would be assigned a truck; he must sign for the truck and all merchandise therein; and the truck must be kept locked at all times when the driver was not in the truck. He was further informed that if the truck was taken at the end of the day to his home, he would be responsible for the truck and the merchandise when he checked in the next morning; the truck must be left in a garage or the driveway of his home; if the truck was kept in the driveway the merchandise must be removed from the truck, the truck must be kept locked, and could not be used for any purpose except business. The day of the accident was the first day that the deceased, Robert Lyle Jones, had the truck alone; prior to that time the route supervisor who had been training him had taken the truck and kept it overnight; on the day of the accident the deceased, Robert Lyle Jones, was given possession and control of the truck by the Q Candy and Cigar Co. under the terms and conditions as heretofore set forth; the route supervisor informed the deceased that if he had a garage the truck must be placed in the garage at night, that if he had no garage it must be placed in the yard and kept locked until the next morning, and he was specifically informed that under no circumstances was the truck to be used for any purpose except business; he was to prepare a daily report of the merchandise on hand and the merchandise sold, and on this occasion would have had to make a report to the checker in the warehouse of the company the next morning; Robert Lyle Jones was given the keys to the truck by Baratz, or the supervisor; and the company paid all the expenses of the truck, including gas and oil, and including private garage expense if the driver rented a garage.
Such of the evidence in the original personal injury action as is abstracted here is, so far as now relevant, to the effect that on October 4, 1951 Robert Lyle Jones was a driver-salesman for the Q Candy and Cigar Co., was assigned the truck in question, which was owned by the company, the driver-salesmen come in (to the company office or warehouse) about 7 a.m. and are finished about 5 p.m., and their hours depend on what stops they make; the collision concerned occurred October 4, 1951 shortly before midnight on Jericho Road, somewhere near Aurora; Jones had invited Kelley (and another party), acquaintances, to get in the truck, saying he'd give them a ride home, though Jones apparently took them on a ride to see how fast the truck would go, evidently over Kelley's protests, and the collision occurred during the course of the ride; Jones had that day brought the truck back to his home a few minutes before 5 p.m., ate supper, sorted his merchandise, took it back to the truck, went downtown in the truck, and came back home at 9:30 p.m.; the ride with Kelley and the collision occurred later that evening.
The insurance policy is called "Comprehensive General Automobile Liability Policy"; the Q Candy and Cigar Co., a corporation, is the named insured; the "coverage" is, for bodily injury liability, "$25,000.00 each person"; it refers to an endorsement described as "Illinois truck filing A-1093 A-1235", which we shall set out separately hereinafter; under "insuring agreements", "I Coverage A Bodily injury liability" reads: "To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury . . . sustained by any person and caused by accident . . ."; also under "insuring agreements", it provides: "III Definition of insured. The unqualified word `insured' includes the named insured and also includes . . . (2) under coverages A . . . any person while using an owned automobile, . . . and any person . . . legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission . . ."; under "declarations" there is a place to state the "purpose of use" of the vehicles covered, but as to the "owned automobiles" which are listed and which include the truck here concerned there is nothing stated under "purpose of use," although as to what are called "hired automobiles" the "purpose of use" as to one is stated as "commercial" and as to another "pleasure and business"; under "conditions", paragraph 3 "Definitions," (e) "purposes of use," the terms "commercial" and "pleasure and business" are defined; under "conditions," paragraph 8 "financial responsibility laws" reads: "Such insurance as is afforded by this policy for bodily injury liability . . . shall comply with the provisions of the motor vehicle financial responsibility law of any state . . . which shall be applicable with respect to any such liability arising out of the ownership, maintenance or use . . . of any automobile insured hereunder to the extent of the coverage and limits of liability required by such law, but in no event in excess of the limits of liability stated in this policy. . . ."
Attached to and forming a part of the policy is an "endorsement for motor carriers policies for bodily injury liability . . . under section 16 of the Illinois Truck Act," which, so far as relevant, reads: "The policy to which this endorsement is attached is a motor vehicle bodily injury liability and property damage liability policy, and is hereby amended to assure compliance by the Insured, as a carrier, with Section 16 of "The Illinois Truck Act,' and the pertinent rules and regulations of the Department of Public Works and Buildings of the State of Illinois.
"In consideration of the premium stated in the policy to which this endorsement is attached, the company hereby agrees to pay any final judgment recovered against the insured for bodily injury to . . . any person . . . resulting from the operation, maintenance or use of the motor vehicles described under the policy and subject to the `Illinois Truck Act' by reason of the design or use of such vehicles, subject, however, to the limits of liability set forth herein.
"Any person . . . who has secured such judgment . . . shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy. . . .
"The liability of the Company under this endorsement extends to such losses, damages, injuries, or deaths whether occurring on the route or in the territory authorized to be served by the Insured or elsewhere within the boundaries of the State of Illinois.
"The liability of the Company under this endorsement on each described motor vehicle shall be a continuing one, notwithstanding any recovery hereunder, and on all such described motor vehicles shall be limited to the following amounts:
"$5,000.00 limit for bodily injuries to or death of one person; . . .
"Nothing contained in the policy or any other endorsement thereon, nor the violation of any of the provisions of the policy or of any endorsement thereon by the Insured, shall relieve the Company from liability hereunder or from the payment of any such final judgment."
It is the plaintiff-appellant's theory, in substance, that the trial court erred and should have entered judgment against the garnishee-defendant for $16,000 and interest at 5% since May 27, 1953, because: (1) the court did not apply what the plaintiff says is the public policy of Illinois regarding the "omnibus clause" of automobile liability policies; (2) the court did not take into consideration that financial responsibility is a statutory requirement in the case of use of a truck and that that fact implements the public policy concerning the "omnibus clause"; and (3) under the "omnibus clause" of this policy, the use at the time in question of the truck by Robert Lyle Jones was with the ...