Appeal from the Circuit Court of LaSalle County; the Hon.
WALTER DIXON, Judge, presiding. Affirmed in part, reversed and
remanded in part.
Rehearing denied August 3, 1967.
Plaintiff-Appellant, State Farm Mutual Insurance Company (hereinafter referred to as SFM), commenced this action for a declaratory judgment in the Circuit Court of LaSalle County, praying for a construction of various policies of liability insurance and a declaration of rights thereunder. In addition to the insurance policy issued by Plaintiff, the action involves policies issued by three other companies, Universal Underwriters Insurance Company (hereinafter referred to as Universal), General Casualty Insurance Company (hereinafter referred to as General), and U.S. Fidelity and Guaranty Company (hereinafter referred to as USF & G). Each of the aforementioned insurance companies was named a party Defendant as was the insured under each policy.
The facts as set forth in the pleadings and as presented by the evidence are not substantially in dispute. Prior to February 29, 1964, Stevenson Sales and Services of Ottawa, Illinois (hereinafter referred to as Stevenson), sold and delivered an automobile to Midway Tobacco Company (hereinafter referred to as Midway), whose principal business was located in Chicago, Illinois. On February 28, 1964, Stevenson picked up the automobile in Chicago from an employee of Midway for the purpose of giving the automobile its 1,000-mile checkup and inspection and also for the purpose of having a dent in the hood removed. Stevenson did not have a body repair shop and it was customary for its body work to be done by the Gordon Lowery Body Shop (hereinafter referred to as Gordon), of Newark, Illinois, Newark being located approximately 20 miles Northwest of Ottawa. When body work was required, Donahue, a partner in the Gordon Lowery Body Repair Business, picked up the automobile from Stevenson, drove it to Newark and returned it to Stevenson after the work had been completed. On February 28, 1964, at 9 p.m. Donahue picked up the car owned by Midway from Stevenson at the latter's place of business so that he could take the automobile to Newark, repair the dented hood and return it to Stevenson. After picking up the car from Stevenson, Donahue drove the car to the home of his girl friend, Jeanne Fitzpatrick, and thereafter Donahue drove the automobile, with his girl friend as passenger, on a tour of the night spots in the Ottawa area. In the early morning hours of February 29, 1964, the automobile, while being driven by Donahue, was involved in a collision in which his passenger, Jeanne Fitzpatrick, was killed and the automobile sustained serious damage. As a result of the collision Richard Mohan, Administrator of the estate of Jeanne Fitzpatrick, commenced an action for wrongful death against Donahue, in the Circuit Court of LaSalle County.
At the time of the occurrence, Plaintiff had in effect a liability policy in which Donahue was the named insured. The policy included the operation of Donahue's personal car (not herein involved) and included Donahue's use of a non-owned vehicle used with the permission of the owner or person in lawful possession thereof. Coverage was excluded with respect to the use of a non-owned automobile while being used in an automobile business.
USF & G had a liability policy in effect, with Midway being its named insured and describing the automobile involved herein. The policy contained the usual and customary omnibus clause which included coverage while the described automobile was being used by another with the permission of the named insured and excluding coverage while the automobile was being used in the automobile business.
Universal had a liability policy in effect, with Stevenson being the named insured, and the insuring clauses of the policy including losses resulting from the operation of automobiles owned by Stevenson and non-owned automobiles when operated by agents or employees of Stevenson.
General had a liability policy in effect, with Gordon being the named insured, which covered losses resulting from the operation of the garage business as well as losses occasioned by the operation of motor vehicles whether owned or not owned when primarily used in the garage business.
In its complaint for declaratory judgment, Plaintiff, SFM, alleged in two counts that its coverage was not applicable because the automobile was being used for garage purposes and was being operated without the permission of the owner. The complaint further alleged that each of the other three insurance companies was primarily liable under the terms of the individual policies. The three Defendant insurance companies filed affirmative defenses, each alleging lack of coverage.
After evidence was heard and briefs presented the trial court found that the policy issued by SFM did provide coverage and that no coverage was afforded under the policies of the other three insurance companies.
Stevenson in his testimony described the receipt of the automobile from Midway and its delivery to Donahue. In addition he also testified concerning the damages to the automobile and exhibits were offered in substantiation thereof. These exhibits included sales invoices and repair estimates. A general objection was made to the admission of such exhibits by SFM which objection was denied. The trial court, in its memorandum advising counsel of its decision on the coverage afforded by the policies, recommended that Stevenson file a petition for judgment for damages to the automobile. A petition was filed and although SFM answered such petition denying that Stevenson was entitled to judgment on the basis of the law and the facts, the trial court entered judgment in favor of Stevenson and against Donahue in the amount of $2,560. On this appeal the principal question raised is the coverage afforded by the policies and secondarily the propriety of the entry of the judgment for property damages in the declaratory action.
SFM argues the trial court erred in finding that: One, the automobile was not used in the automobile business within the exclusionary provision of the SFM policy; Two, the automobile was not being used in the garage repair business within the coverage of the General policy; and Three, no coverage was afforded by the USF & G policy. Initially we note that neither SFM, General or USF & G argue that any coverage is afforded by the Universal policy, it being conceded that Donahue was neither an employee nor an agent of Stevenson nor was the automobile owned by Stevenson as required under the insuring provisions of the Universal policy. For that reason the Universal policy will not be further discussed and the trial court's conclusion that no coverage was afforded by such policy is approved.
The issues in this case depend upon the application of principles relating to the use of motor vehicles with the permission of others. The development of rules concerning permission has been occasioned by the common use of omnibus clauses in insurance policies whereby persons using motor vehicles described in the policy with the permission of the named insured are declared to be additional insureds under the policy. Another provision also commonly employed is an additional insuring clause which affords coverage when the loss arises from the named insured's use of a motor vehicle of another with the latter's permission. The two provisions are complementary and designed to afford broad coverage. Permission is a common element of both provisions since each depends either on the permission of the named insured or the owner of the vehicle. In applying rules relating to permission, three views are possible. First, that coverage exists only as long as there is strict compliance with the express permission and intended purposes of the owner. Second, that coverage will exist as long as deviations from these purposes are minor. Third, that once permission is granted coverage exists in spite of any deviation from the original permission. Fireman's Fund Indemnity Co. v. Freeport Ins. Co., 30 Ill. App.2d 69, 173 N.E.2d 543. Illinois has adopted the last or more liberal rule namely that initial permission once given is not affected by subsequent deviation. Konrad v. Hartford Accident & Indemnity Co., 11 Ill. App.2d 503, 137 N.E.2d 855, analyzes the prior Illinois authorities on this subject. Most of the Illinois cases in which the principles of permission were developed are concerned with the omnibus clause and although in some contexts distinctions may arise between an omnibus clause and an additional insuring clause, we believe that in the context of the instant case no distinction need be made between the permission required in each of such clauses. When permission has once been given by a person entitled to give the permission for use of a motor vehicle, and the person receiving such permission deviates therefrom, Illinois follows the initial permission rule to the effect that the user need only have received permission to take the vehicle in the first instance. Any use while it remains in his possession is with permission though that use may be for a purpose not contemplated under the terms of the permission.
SFM admits that its insured received permission to use the automobile from a person in lawful possession thereof within the provision of its policy. However SFM argues that its insured also received permission to use the automobile from the named insured under the provisions of the USF & G policy. With respect to the USF & G policy, Stevenson, having received permission from an agent of Midway and having given permission to Donahue to use the motor vehicle, the question arises whether Donahue as second permittee was using the automobile with the permission of the named insured. In Hayes v. Country Mut. Ins. Co., 28 Ill.2d 601, 192 N.E.2d 855, the court stated, "The interest both of the insured and of the insurance company center upon the identity of the permittee, his relation to the insured and his ability and responsibility as a driver. The use to which he puts the vehicle while it remains in his control may be regarded as of secondary importance to the question of coverage. Decisions holding that coverage persists despite a deviation from the permitted scope in route, purpose, or duration of use do not therefore compel the conclusion that coverage should also extend to third persons whom the original permittee has, without authority, allowed to use the car. The rule that initial permission will suffice applies in reason only when that permission was granted to the user sought to be brought within the coverage of the policy. Of course the named insured may by express authorization delegate to his permittee the power to grant permission to others, and circumstances surrounding the original permission may support an implication of such an authorization. Thus where the permittee is in every practical sense the owner of the car, and the named insured holds title for convenience, the general custody and control of the permittee is usually held to empower him to grant permission to others within the scope of an omnibus clause, at least in the absence of express prohibition. (See, e.g., Hinchey v. National Surety Co., 99 N.H. 373, 111 A.2d 827 (1955); Fireman's Fund Indemnity Co. v. Freeport Insurance Co., 30 Ill. App.2d 69, 173 N.E.2d 543; cf. Norris v. Pacific Indemnity Co., 39 Cal.2d 420, 247 P.2d 1 (1952).) If the original permittee retains control of the car, but turns over its physical operation to a third person while remaining a passenger, an implied permission has been found in the continued use and control of the original permittee. (See Standard Accident Insurance Co. v. New Amsterdam Casualty Co., 249 F.2d 847 (7th Cir 1957); Fireman's Fund Indemnity Co. v. Freeport Insurance Co., 30 Ill. App.2d 69, 173 N.E.2d 543.) Even where the original permittee is not a passenger, an ...