Appeal from the Circuit Court for the Sixteenth Judicial
Circuit of DeKalb County; the Hon. CARL A. SWANSON, JR., Judge,
presiding. Judgments adverse to defendants reversed.
MR. PRESIDING JUSTICE MORAN DELIVERED THE OPINION OF THE COURT.
Defendant insurance companies each appeal from judgments rendered against them in favor of the minor plaintiff. The judgment against defendant, The Farmers Automobile Insurance Association, was for Three Hundred Forty-three and 54/100 Dollars ($343.54) and costs of suit and the judgment against defendant, Horace Mann Mutual Insurance Company, was for One Hundred Seventy-one and 77/100 Dollars ($171.77) and costs.
This controversy arises out of an automobile collision which occurred April 1, 1961, between vehicles driven by plaintiff James Hanegan and one Geraldine Hart.
At the time of the collision Hanegan was driving a 1950 Pontiac automobile which was owned by Mr. Charles Mellinger. Mellinger was the owner of a policy of insurance issued by The Farmers Automobile Insurance Association. This policy contained the usual clause defining persons insured as follows:
Persons Insured The following are insureds under Part 1:
"a. With respect to the owned automobile, (1) the named insured and any resident of the same household (2) any other person using such automobile, provided the actual use thereof is with the permission of the named insured."
The "Other Insurance" clause of the policy provided:
"If the insured has other insurance against a loss covered by Part 1 of this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance with respect to a temporary substitute automobile or non-owned automobile shall be excess insurance over any other valid and collectible insurance."
On the morning of the accident Charles Mellinger's seventeen-year-old son Gary was using his father's automobile. He picked up the plaintiff, James Hanegan, and two other young men and drove to the University Shopping Center in DeKalb, Illinois. They went to the barber shop in the Shopping Center where Gary Mellinger intended to get a haircut. The plaintiff, Hanegan, asked Gary if he might borrow the car to get something to eat. Gary consented and gave the car keys to the plaintiff. The plaintiff, with one of the other boys as a passenger, drove out of the Shopping Center and collided with a car driven by Geraldine Hart and owned by Robert Hart.
The plaintiff's father, Lyle Hanegan, had insurance with defendant Horace Mann Mutual Insurance Company. That policy contained a provision defining insured with respect to a non-owned automobile as, ". . . the named insured, any relative, . . . provided the actual use thereof is with the permission of the owner, . . ." The Horace Mann policy contained an "Other Insurance" provision identical to the corresponding provision in the Farmers policy.
Robert Hart filed action against James Hanegan for property damages to his automobile. Plaintiff submitted the defense of the case to each of the defendant insurance companies and each refused to accept the defense.
The plaintiff then retained private counsel to defend him and upon trial of that cause Robert Hart recovered judgment and this action against the insurance companies followed.
This case was tried before the court and resulted in a finding that plaintiff was entitled to recover the amount of the Hart judgment plus interest, plus Two Hundred Dollars ($200) for attorney's fees and plus costs. The court assessed one-third of the damages against Horace Mann and two-thirds of the damages against Farmers and each company has appealed.
At the trial before the court plaintiff James Hanegan testified that he was sixteen years old, a high school student and a licensed driver. He testified that he rode with Gary Mellinger in the automobile in question on many occasions and that Gary would drive the car to school two or three times a week as well as to social and athletic functions on weekends. He testified that Gary had the car key on a key chain with his house key and a key to his school locker. He also testified that on the day of the accident Gary picked him up at his home ...