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Allstate Ins. Co. v. Lake Shore Mut. Ins. Co.

NOVEMBER 15, 1961.

ALLSTATE INSURANCE COMPANY, A CORPORATION, AND MILFORD FISHER, PLAINTIFFS-APPELLEES,

v.

LAKE SHORE MUTUAL INSURANCE COMPANY, A CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Superior Court of Cook County; the Hon. DONALD S. McKINLAY, Judge, presiding. Affirmed.

MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.

The controversy in this case is over the meaning of the words "automobile repair shop" which appear in an automobile liability insurance policy of the defendant, Lake Shore Mutual Insurance Company.

The policy was issued to Arthur Weiss who asked Milford Fisher to repair his auto. While driving the Weiss car Fisher had an accident. Fisher was sued in the Municipal Court of Chicago where he was represented by his own insurance company, the plaintiff Allstate, under a liability policy which provided that it would protect him while driving someone else's auto. This protection was excess coverage, and was limited to any recovery over and above the insurance carried on the non-owned auto.

Allstate tendered the defense of the suit to Lake Shore on the ground that Fisher had permission to drive Weiss' car, that Weiss' policy with Lake Shore provided coverage for such permissive use and that Lake Shore was, therefore, the primary insurer. Lake Shore refused to defend Fisher.

This action by Allstate for declaratory judgment followed. Lake Shore answered that the Weiss policy did not cover persons who operated automobile repair shops and that Fisher was so engaged on the date of the accident. The policy was attached to the answer. The pertinent portion is as follows:

"The insurance with respect to any person . . . other than the named insured . . . does not apply: (1) To any person or organization, or to any agent or employee thereof, operating an automobile sales agency, repair shop, service station, storage garage or public parking place, with respect to any accident arising out of the operation thereof, . . . ."

The trial court found that Fisher was not operating a repair shop, that Lake Shore was not entitled to assert the exclusion it was relying upon and that it had to defend Fisher and pay any judgment against him within the limits of its policy.

Arthur Weiss and his brother, Homer, were co-owners of a hardware store. Fisher was a customer of theirs and they learned that he repaired autos. They asked him to repair two business cars and their two personal cars. Fisher had been a truck driver all his working life, made about $9,000 a year, and was employed on an excavating job prior to the accident with Arthur Weiss' car in February 1959. Bad weather had caused a temporary layoff and during this period he made deliveries for the hardware store and repaired the autos. Much of the work was done in an alley garage back of the building in which Fisher lived. The motor of one business car was overhauled and some work was done on the other and on Homer Weiss' auto. The garage was more or less of a two-car size and had but one 8' wide door. A boat about 18' long and 5' wide was on one side of the garage and the car being repaired had to be put in at a 45 degree angle so that there would be room to walk around it. As the work progressed the brothers advanced Fisher money to purchase necessary parts and tools and loaned money for a spray compressor to a man named Muncie, another customer of theirs and a neighbor of Fisher's, whom they had engaged to paint two of the cars.

Arthur Weiss testified that he visited the garage three or four times. He saw hand tools there but did not remember seeing power tools or business signs. He said he understood that Fisher paid one-half of the garage rent and Muncie paid the other half. He said that Fisher also worked on the auto of Sidney Findler, a neighboring business man, but he didn't know what work was done or where it was done. He also said that he heard Fisher make an appointment to fix another man's car.

Fisher testified that he did not repair autos as a regular job and did not maintain a shop. He said the garage was rented by his son for the son's own auto and that he was permitted to use it for the spare-time work on the Weiss autos. He said that he worked on the two business cars there but on no others. He put a carburetor on Homer Weiss' auto in front of Homer's home and was about to make ignition repairs on Arthur Weiss' car when the accident occurred. He had, over a ten year period, made minor repairs on 8 or 10 autos, which were parked in the street, for friends and others who heard of him by word of mouth. Sometimes he got paid and sometimes he didn't. He earned nothing for such work in 1958, and in 1959 he made a total of $139, the amount paid him by the Weiss brothers. In the garage he had a few hand tools and Muncie had the compressor. He said that on the date of the accident the garage was occupied by his son, that he had picked up a battery at the hardware store, had installed it in Arthur Weiss' car at Weiss' home and was bringing the car back to the store to do the ignition work there when the accident happened. He acknowledged talking to Findler but said he did no work for him, but would have worked for him or for anyone else if it was something he could do, if he had the time and if he was paid.

There was no other testimony. Homer Weiss, Muncie and Findler were not called as witnesses.

It is clear from the foregoing evidence that Fisher did not operate a "repair shop" within the conventional meaning of those words: a building or room where mechanics or artisans make repairs by means of tools or machinery. He had no set place to do the occasional job which came his way. In a ten year period prior to the Weiss repairs no two jobs were done in the same place. The only time an enclosure of any kind was used was for the repairs on the two Weiss business cars, and even this temporarily-loaned small part of a garage was not available to him when he undertook to remedy the ignition difficulty of the Arthur Weiss car. At the time of the accident he was driving this car for the purpose of repairing it but he was not driving it to or from a repair shop, and the accident did not arise out of the operation of a repair shop as required by the exclusionary clause of the policy.

The defendant argues that the clause is not to be taken literally, but that the intendment of the full exclusionary clause and of the words "operating a repair shop" applies to personalities as well as to locations, and that if a person is a repairman and holds himself out to the public as such, it makes no difference whether the business he accepts is done in a shop or on a street. Two cases are cited which interpret similar clauses and which support this argument. In Public Indemnity Co. of Newark, N.J. v. Yearwood, 50 Ga. App. 646, 179 S.E. 232, the owner had employed Ingram to repair his car. While operating the auto in connection with the repair work, Ingram, who was not in the regular business of repairing automobiles and who was doing this work to make some extra Christmas money, killed a minor. The court held that there was ". . . no substantial difference, for the purposes of automobile liability insurance, between an individual undertaking to repair an automobile for the owner thereof and a `public garage' or `automobile repair shop.'"

In Brower v. Employers' Liability Assur. Co., 318 Pa 440, 177 A 826, the court, in speaking about a professional chauffeur and mechanic named Brower who ...


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