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Visintin v. Country Mut. Ins. Co.

DECEMBER 9, 1966.

RAYMOND VISINTIN, PLAINTIFF-APPELLEE,

v.

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



Appeal from the Circuit Court of St. Clair County; the Hon. JOHN M. KARNS, Judge, presiding. Judgment adverse to defendant affirmed.

GOLDENHERSH, J.

Rehearing denied December 30, 1966.

Defendant, Country Mutual Insurance Company, a corporation, appeals from the judgment of the Circuit Court of St. Clair County, entered in favor of plaintiff, after a non-jury trial.

This action arises out of an automobile collision which occurred on August 10, 1961. Plaintiff was injured while driving an automobile which was struck by an automobile owned by Jane Villegas, and driven by Shirley Kessinger. Plaintiff filed suit in the District Court of the United States for the Southern District of Illinois, naming as defendants, Shirley Kessinger, Jane Villegas, and Pedro Villegas, her husband, and Erwin Shaw. Prior to submission of the case to the jury, plaintiff dismissed as to Shaw, the court directed verdicts in favor of Mr. and Mrs. Villegas, and the jury returned a verdict in favor of plaintiff, and against Shirley Kessinger. The record shows that no service of process was had on Shaw, and apparently neither party knew his place of residence at that time.

The parties have stipulated that on August 10, 1961, there was in force and effect a policy of insurance issued by defendant, covering the automobile involved in the collision in which plaintiff was injured, and naming Jane Villegas as the insured.

Plaintiff's complaint, as amended, alleges the entry of the District Court judgment, the issuance of execution, its return "unsatisfied," the existence of the policy, and defendant's refusal to pay the judgment.

Defendant's answer admits the entry of the judgment, the existence of the policy, the return of the execution, but denies liability on the ground that Shirley Kessinger was not operating the vehicle with the permission of the named insured, or with the permission of any adult member of the named insured's family.

The evidence shows that the named insured, Jane W. Villegas, and her husband, Pedro Villegas, owned and lived on a farm near Eldred. Erwin Shaw was employed by them, and lived in a house on the farm, with his wife and 4 children. Shaw did general farm work, looked after some of the stock, and took care of the farm machinery. On occasion, he drove one of the farm vehicles to Carrollton to buy repair parts for the farm equipment. He had worked for the Villegases for approximately a year, on an hourly basis, and was considered a good employee.

On August 2, 1961, the Villegases left for a trip to Mexico City. They left the 1961 Chevrolet, which was involved in the accident, on the farm, and both of them, at different times, told Shaw that while they were gone he could drive the 1961 Chevrolet to go to Carrollton to buy parts needed for the repair of the farm machinery, and in going back and forth to Carrollton, he could stop and buy groceries. Prior to that time, Shaw had never driven this automobile. They specifically instructed him at this time not to allow anyone else to drive the car. This was done primarily because the Villegases knew that Shaw had teenage boys, whom they did not want to drive the car, and also because there was no collision insurance.

Prior to leaving for Mexico, the Villegases gave Shaw checks, dated a week apart, to cover his weekly wages. Shaw was instructed to enter the number of hours he worked each day, in a book provided by Pedro. It was agreed that he would be paid for any amounts due him in excess of the amounts of the checks, when the Villegases returned from their trip. At the time of the Villegases' departure, the speedometer of the Chevrolet showed that it had been driven 8,215 miles; when they returned, it had been driven in excess of 10,000 miles, and the speedometer was disconnected.

The Villegases did not know Shirley Kessinger, who was driving the car at the time of the collision on August 10, 1961. They knew nothing of the occurrence on August 10th, until they returned to their farm on September 6, 1961. When they returned to the farm, they found it unattended, and Shaw was gone. The book entries which Shaw was required to keep showed that he had worked from 7:00 a.m. to 3:00 p.m. on August 10, 1961. They checked with the dealers at Carrollton and discovered that no parts had been purchased by Shaw on that date.

Shirley Kessinger testified that she met Shaw in a tavern about 5:00 p.m. on August 10th. Shortly thereafter, she left the tavern with Shaw to look for her older sister, who had been "running around" with Shaw. Shirley drove the automobile to another tavern, and Shaw sat in the front seat. They had a drink at each of the taverns. After leaving the second tavern, they went to a third tavern, near Greenfield. None of the taverns were near, or in the direction of, the Villegas farm. In each instance, Shaw told Miss Kessinger where to go. He told her that the 1961 Chevrolet was his new car, and asked her to drive. They did not find Shirley's sister, and left the tavern at Greenfield to return to Roodhouse, because Shirley wanted to attend a dance which started at 9:00 o'clock. As they started toward Roodhouse, Shaw started making advances. He reached over and pulled up her dress. She asked him to stop, but shortly thereafter, he did the same thing. Each time, she reached down and pushed his hand away. This continued, on and off, for about 10 or 15 minutes. Near the scene of the collision with the Visintin car, Shaw was again attempting to lift up her dress, and in pushing his hand away, she looked down, the car crossed the middle line of the road, and the collision occurred.

Shaw has apparently been charged with forging checks given him by the Villegases, and his ...


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