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Schoenknecht v. Prairie State Farmers Ins.

SEPTEMBER 21, 1960.

RICHARD SCHOENKNECHT, PLAINTIFF-APPELLEE,

v.

PRAIRIE STATE FARMERS INSURANCE ASSOCIATION, AN INTER-INSURANCE EXCHANGE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane county; the Hon. CASSIUS POUST, Judge, presiding. Judgment order affirmed.

DOVE, J.

Prairie State Farmers Insurance Association, the defendant, issued an automobile policy of insurance to Richard Schoenknecht, the plaintiff, effective November 28, 1956 and expiring May 28, 1957. This policy specifically insured plaintiff's Buick automobile and contained among other, the following insuring agreements,

"1. Coverages A and B —

(a) Bodily injury liability and (b) Property Damage liability.

"IV. Use of Other Automobiles,

If the named insured is an individual or husband and wife and if during the policy period such named insured or the spouse of such individual if a resident of the same household, owns an automobile covered by this policy and classified as `pleasure and business' such insurance as is afforded by this policy under coverages A, B, C, F, G, or H with respect to said automobile applies to any other automobile subject to the following provisions: (a) With respect to the insurance afforded under coverages A and B the unqualified word `insured' includes (1) such named insured and spouse and (2) . . .

(b) . . .

(c) Insuring Agreement IV does not apply:

(1) to any automobile owned by, registered in the name of, hired as part of a frequent use of hired automobiles, by, or furnished for regular use to either the named insured or a member of the same household other than a private chauffeur or domestic servant of such named insured or spouse; (2) to any automobile while used in the business or occupation of such named insured or spouse except a private passenger automobile operated or occupied by such named insured, spouse, private chauffeur or domestic servant."

The record discloses that plaintiff is a resident of Carpentersville in Kane County and has been for many years, employed by The Peoples Gas Light and Coke Company, a public utility doing business in Chicago. His duties were to answer complaints made to his employer regarding leakage of gas and to service gas appliances. His working hours were from 8 o'clock a.m. until 4:30 o'clock p.m. each weekday and his employer furnished him with a Chevrolet passenger car to be used by him in the performance of his duties. At the conclusion of his day's work it was the duty of plaintiff to return the Chevrolet automobile belonging to his employer to the shop of his employer at 4643 West Irving Park Road, Chicago, Illinois.

On May 2, 1957 plaintiff made his last call of the day for his employer at or near Belmont and Halsted streets in Chicago. Instead of returning the car he was driving, to the shop of his employer at 4643 West Irving Park Road he proceeded to visit friends living on Chicago and Ashland Avenues in Chicago. About eleven o'clock on the evening of that day, May 2, 1957, plaintiff was driving this Chevrolet car in a westerly direction on Fullerton Avenue near Leavitt Street in Chicago and ran into the rear end of an automobile owned and then being operated by Margaret Kuskowski. The collision forced the Kuskowski car forward and it ran into the rear end of an automobile then being operated by James Burns, a minor, but owned by James P. Goss. As a result of these collisions Margaret Kuskowski and James Burns each sustained personal injuries and the Kuskowski and Goss cars were damaged.

Notice of the accidents was given by the plaintiff to the defendant, Insurance Company, and subsequently the injured parties made claims against the plaintiff for the damages they sustained and the defendant was promptly notified thereof. Upon the advice of counsel the plaintiff settled the personal injury claim of Margaret Kuskowski and thereafter she filed an action in the Municipal Court of Chicago to recover her property damage. Subsequently Burns and Goss filed their action in the Superior Court of Cook County to recover for the damage each of them sustained and these actions are pending and undetermined. Defendant has consistently refused to recognize any liability under the policy.

On March 17, 1959 the instant complaint was filed by the plaintiff seeking to recover from the defendant the $1200.00 he had paid in settlement of the personal injury claim of Mrs. Kuskowski. The complaint also prays for a decree construing the provisions of this insurance policy, declaring the rights of the parties thereto and for an order directing the defendant to appear and defend the several pending actions growing out of this collision.

The defendant appeared and filed its motion to dismiss the complaint. Motions were then filed by both the plaintiff and the defendant, each supported by affidavits and each party seeking a summary judgment. At the conclusion of the hearing of the several motions the trial court entered an order construing the provisions of the policy and finding that the plaintiff was entitled to the benefit and protection of this policy of insurance and should be reimbursed for the settlement he made with Margaret Kuskowski. The court then rendered judgment in plaintiff's favor and against the defendant for the amount of the settlement and ...


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