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Hays v. Country Mut. Ins. Co.

OCTOBER 22, 1962.

DORIS HAYS (CAUDLE), PLAINTIFF-APPELLANT,

v.

COUNTRY MUTUAL INSURANCE COMPANY, A CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Coles County; the Hon. JOHN F. SPIVEY, Judge, presiding. Reversed and remanded.

ROETH, JUSTICE.

Rehearing denied December 11, 1962.

Plaintiff recovered a judgment against one Thomas Hargis for injuries sustained in an automobile collision, while a passenger in the automobile being driven by Hargis. Plaintiff then commenced this suit against the defendant Country Mutual Insurance Co., upon a policy of insurance issued by defendant to one Stanley Daily covering the automobile in which plaintiff was riding, claiming to be an additional insured under said policy. The trial court directed a verdict for defendant at the close of plaintiff's evidence and this appeal followed. This case presents the question of how far the omnibus clause in defendant's contract of insurance extends the coverage.

At the outset it is to be noted that in the Schedule of Warranties made a part of the policy the purpose for which the motor vehicle is to be used is designated as business or pleasure of the insured. Section 1 of the policy provides the coverage ordinarily referred to as public liability coverage. The additional interests clause (omnibus clause) provides as follows:

"Additional Interests: The insurance provided in Section 1 by this policy is extended to apply, in the same manner and under the same provisions as it is applicable to the named insured, to any person or persons while riding in or operating the motor vehicle described in this policy when such motor vehicle is being used for the purpose and in the manner described in this policy. Such insurance shall also extend to any policy holder of the company who is insured against the perils described in Section 1 of this policy, the Illinois Agricultural Association, any County Farm Bureau in the State of Illinois or any association or corporation associated or affiliated with any County Farm Bureau of Illinois or Illinois Agricultural Association, if legally responsible for the operation of such motor vehicle. The coverage hereby afforded shall not apply unless the riding, use or operation above referred to be with the permission of the insured named in the policy, or if such insured is an individual, with the permission of any adult member of such insured's family, nor unless such person, association or corporation shall comply with all provisions regarding notice, information, affidavits, proof of loss and cooperation and other requirements of the insured."

The exclusions to section 1 clause provides in part as follows:

"The company shall not be liable under section 1 of the policy, unless specifically endorsed hereon for: . . . (2)(d) any person riding in motor vehicle described herein without the express or implied consent of insured or of an adult member of insured's family."

Counsel for plaintiff contend that the use of the words "express or implied consent of the insured" in the exclusions clause and the absence of those words in the additional interests clause creates an ambiguity in the policy which should be resolved against the company so as to regard the permission referred to in the additional interests clause as being capable of being conferred either expressly or by implication. Counsel for defendant do not contend that permission must be only express permission. We do not regard the policy as being ambiguous. In our opinion permission under the additional interests clause may be either express permission or implied permission.

We now proceed to a consideration of plaintiff's evidence. Since counsel draw different inferences from some of this evidence we shall comment on their respective contentions as we detail the evidence. Stanley Daily and his wife lived on a farm near Sullivan. Four children resided with them, namely, Eleanor Slover, 16, a daughter of Mrs. Daily by a former marriage, Roger Daily, 15, Janet Daily, 11, and the youngest child, Aggie. About two or three weeks prior to November 5, 1955, the night of the occurrence in question, Eleanor Slover had received her driver's license. Eleanor had a date in town that night and Roger and Janet wanted to go to the show. Roger Daily testified that after supper Eleanor Slover said this to Stanley Daily:

"She asked Father if we could use the car that Saturday night because she'd got her license and she had never been to town or drove before by ourselves and she asked him if we could take it to town."

He further testified that:

"There was a hesitation whether he'd let us or not and then he said it would be okay if we took it and parked it on the square and not drive around just to go to the show and come out and go home. He also said at that time Eleanor was to drive."

It is true from the foregoing that Stanley Daily undertook to limit the purpose for which permission was being granted, to driving to town, parking the car, going to the show and coming home. However, it is important to realize that the purpose for which permission was being granted falls within the broad category of a social or pleasure purpose. Thus permission was granted to use the car for social or pleasure purposes.

It is important to note at this point that Illinois has adopted and adhered to the so-called initial permission rule. Konrad v. Hartford Acc. & Indemnity Co., 11 Ill. App.2d 503, 137 N.E.2d 855. Under the rule announced in this case, when Stanley Daily gave permission to Eleanor Slover to use the automobile, any use of the automobile by Eleanor Slover while it remained in her possession is with Stanley Daily's permission under the ...


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