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Lumbermens Mut. Cas. Co. v. Poths

DECEMBER 27, 1968.

LUMBERMENS MUTUAL CASUALTY CO., A MUTUAL COMPANY, PLAINTIFF-APPELLEE,

v.

RONALD POTHS, DEFENDANT-APPELLANT, LAWRENCE SUSMARK, ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Kane County, Sixteenth Judicial Circuit; the Hon. JOHN S. PETERSEN, Judge, presiding. Reversed and remanded.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.

This is a declaratory judgment action wherein the plaintiff, Lumbermens Mutual Casualty Co. (Lumbermens), sought a declaration that Ronald Poths (Poths) was not an insured within the language of its automobile liability insurance policy issued to Lawrence Susmark. Poths, while driving the automobile described in this policy, was involved in an accident wherein the defendants, Mildred E. Maxwell and Kimberly Maxwell, allegedly sustained injuries. They brought suit against Poths to recover damages for such injuries.

Poths tendered the Maxwell complaint to Lumbermens and requested it to defend the suit under the policy in question. Lumbermens accepted with reservation of rights and proceeded with the defense of the suit. Concurrently, it filed this declaratory judgment action.

The insurance policy defines the insured with respect to the owned automobile to include "any person while using the automobile . . . provided the actual use of the automobile is by the named insured or such spouse or with the permission of either."

Lumbermens filed a motion for summary judgment which set forth the above facts and asserted that at the time when the accident occurred, Poths did not have permission from Lawrence Susmark (Mr. Susmark), the insured, or his wife, Anna Doris Susmark (Mrs. Susmark), to drive the automobile. The motion was supported by the affidavit of the attorney for Lumbermens and by a copy of the policy, the Maxwell complaint, the reservation of rights, and the depositions of Mr. Susmark, Mrs. Susmark, Robert Susmark (Robert), and Poths.

Poths filed an affidavit in opposition to the motion for summary judgment which stated that he and Robert were close friends; that the automobile in question was commonly known as Robert's car; that he thought that Robert owned it; that Robert told him to have an additional key made for his use and he did so in Robert's presence; that on certain occasions before the accident, he and Robert would discuss plans for the evening at the Susmark home and in the presence of Mr. and Mrs. Susmark; that on such occasions upon leaving the home, Robert in no manner sought permission of his parents to drive the car; that Mrs. Susmark once saw him drive the car and she made no comment about it; and that he had driven the car approximately twice a week for a considerable period of time prior to the accident and always with Robert's permission.

An affidavit of Eugene Laky, also filed in opposition to the motion, recited that the automobile was commonly known as Robert's car; that he had driven it with Robert's permission; that on one occasion when Poths was driving the car and he was a passenger, Mrs. Susmark saw Poths drive; and that Poths drove the car into the Susmark driveway and stopped, and Mrs. Susmark made no protest with reference to the fact that Poths was driving.

The depositions of Poths, Robert, Mr. Susmark and Mrs. Susmark will be considered separately.

Poths, 16 years of age, stated that he and Robert were close friends; that they went to dances and rode around together; that Robert never told him that there were restrictions on the use of the car; that when he visited at the Susmark home and Robert desired to use the car, Robert would ask either his father or mother for permission to use it; and that on one occasion, Mr. Susmark refused Robert's request to use the car. Poths also stated that he worked on the car with Robert at the Susmark home; that while working on the car he would drive the car forward or backward in the driveway; that Robert taught him to drive the stick shift, but he didn't believe that Robert said anything to his father about this; that he never discussed driving the automobile with Mr. Susmark; that in April of 1966, with Robert's permission, he had a key made for the car; that he had been driving the car while Robert was at work since about January of that year; that Robert would drive the car to work, then park it, and he would drive it as long as Robert was working and didn't need it; that Robert would know in advance when he was going to use the car; that he would ask Robert if he could use it; that he used it with Robert's express permission; that on one occasion, Robert left the key in the car and he drove it from school without Robert's express permission; that he was taking classroom driving at school but did not have a driver's license; that on certain occasions, Robert would tell him not to use the car because he was going to get off early or because something was wrong with it; and that Mrs. Susmark saw him drive the car on one occasion and neither objected nor told him not to drive in the future.

Poths further stated that on April 22, 1966, the date of the accident, Robert asked him if he was going to use the car and he said he wasn't because the transmission was causing trouble; that later Jerry Hulme came to the theater where he worked and asked for and was refused the key to the car; that Hulme came back later and said that Robert told him that it was all right to get the key; that he then gave Hulme the key and asked him to bring the car back at 9 p.m.; that Hulme returned about 9:30 p.m. with two girls and asked him when he would get off work, and he stated at 10:30 p.m.; and that Hulme came back at that time and he (Poths) got into the car and drove it, and was driving it in Aurora at the time of the accident.

Mr. Susmark, the insured, stated that Mrs. Susmark purchased the car and held title to it; that it was purchased as a second car for Mrs. Susmark and for Robert to use on occasion with permission from his parents; that Robert obtained specific permission from either Mrs. Susmark or himself on each occasion when he used the car; that Robert had no blanket permission to use it; that he had cautioned Robert about letting anyone else drive the car; that on one occasion he saw Poths drive the car in the driveway when the boys were working on it; and that he did not know there was a second key to the car. He also stated that Robert had repaid him for part of the purchase price of the car, and and that it was purchased partly for him to have a car so he could learn how to drive and maintain a car.

In her deposition, Mrs. Susmark stated that the car was purchased by her husband and herself as a car for her and as a car for Robert to work on and use; that Robert had paid for the insurance on the car and had repaid part of the purchase price of the car; that she kept the key in her purse; that Mr. Susmark told Robert that no one other than the three of them was to drive the car; and that she had no recollection of ever seeing Poths drive the car. Her statements concerning Robert's permissive use of the automobile were substantially the same as those of Mr. Susmark. She also stated that she worked evenings on occasion and used the car for shopping; that Mr. Susmark took the train to work and left his car at home.

Robert, a high school senior, stated that the car was purchased as a second family car for his mother; that he could drive it on occasion and could work on it; that he oiled and greased the car and worked on it; that he had to have specific permission from either his father or mother for each occasion when he used the automobile, and he never used the car without such permission; that he never sought permission for anyone else to use it and never told his father or mother that anyone else was driving it; that after his father saw Poths drive the car in the driveway, his father told him that he didn't want Poths to drive the car; that he had no specific understanding with Poths about driving the car; and that he agreed that Poths could use it if he had his specific permission for each occasion.

Robert also stated that he worked on April 22; that he had permission to drive the car to work and did so; that he talked with Poths who said he wasn't going to take the car; that he told Poths that he didn't want him to use it because of trouble with its transmission; that he did not see or give Hulme permission to use the car or get the key; that before going to work, he parked the car in the parking lot and removed the key; and that when he came back about 1:30 p.m., after completing his work, the car was gone. Robert further stated that he had never contributed anything on the purchase price of the car, but did buy gasoline and oil and helped with repairs for it.

A similar declaratory judgment action against the Farmer's Insurance Company was also filed in the Circuit Court of the 16th Judicial District, Kane County, wherein Robert F. Poths, and Ronald W. Poths, a minor, by Robert F. Poths, his father, were plaintiffs. The Poths made a motion to consolidate these actions. The trial court denied the motion but did order the cases consolidated for trial, which was done, and separate judgments were entered in each case.

The trial court entered a summary judgment in the case at bar in favor of Lumbermens and the defendant Poths, appealed.

Poths here urges that the trial court abused its discretion in denying his motion to consolidate the two actions, and that the court erred in entering summary judgment in favor of Lumbermens.

The consolidation of cases is a matter within the discretion of the trial court, and unless that discretion has been greatly abused, this court will not interfere. Black Hawk Motor Transit Co. v. Illinois Commerce Commission, 383 Ill. 57, 66, 48 N.E.2d 341 (1943); Chicago v. Atkins, 19 Ill. App.2d 177, 180, 153 N.E.2d 302 (1958). In the case at bar, the trial court denied the motion to consolidate, but did order that the two cases be consolidated for trial. Under these circumstances, we find no abuse of discretion in the denial of the motion.

The entry of summary judgment in favor of Lumbermens presents the issue of whether the trial court erred in holding, as a matter of law, that Poths was driving the automobile in question at the time of the accident without the permission of either Mr. Susmark or his wife.

The principles applicable to a motion for summary judgment under section 57 of the Civil Practice Act (Ill Rev Stats 1967, c 110, par 57) are well defined. Summary judgment is a procedure to be encouraged (Allen v. Meyer, 14 Ill.2d 284, 292, 152 N.E.2d 576 (1958)); however, it is a remedy to be awarded with some caution so as not to preempt the right to a trial by jury or the right to fully present the factual basis for a case where a material dispute may exist. Ruby v. Wayman, 99 Ill. App.2d 146, 240 N.E.2d 699, 700 (1968); Solone v. Reck, 32 Ill. App.2d 308, 310, 311, 177 N.E.2d 879 (1961); Tezak v. Cooper, 24 Ill. App.2d 356, 362, 363, 164 N.E.2d 493 (1960).

Section 57 provides that a summary judgment should be rendered if the pleadings, depositions and admissions on file, together with the affidavits, if any, "show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment or decree as a matter of law."

Courts have construed this section to mean that in determining if there is a genuine issue as to any material fact, inferences may be drawn from the facts which are not in dispute, and if fair-minded persons could draw different inferences from these facts then a triable issue exists. Ruby v. Wayman, supra, 700, 701; Peirce v. Conant, 47 Ill. App.2d 294, 300, 198 N.E.2d 555 (1964).

In making the above determination on a motion for summary judgment, the court must construe the pleadings, depositions and affidavits most strictly against the moving party and most liberally in favor of the opponent. Solone v. Reck, supra, 311. A summary judgment should then be granted where the moving party's right thereto is clear and free from doubt. Ruby v. Wayman, supra, 701; Palier v. Dreis & Krump Mfg. Co., 47 Ill. App.2d 334, 338, 198 N.E.2d 521 (1964); Solone v. Reck, supra, 310.

Applying these principles, we believe that the trial court erred in granting a summary judgment in favor of Lumbermens. The only function of the court, when presented with a motion for summary judgment, is to determine if a genuine issue exists as to a material fact; if not, summary judgment is proper; if so, summary judgment is improper, as the court may not summarily determine a material fact issue. Kamholtz v. Stepp, 31 Ill. App.2d 357, 367, 368, 176 N.E.2d 388 (1961).

There is no genuine issue with reference to the fact that on the date of the accident, Robert was granted permission by either his father or mother to drive the car to the placed where he worked. This he did. Later, Jerry Hulme, without permission and by ruse, obtained the key to the automobile from Poths, who told him to return the automobile by 9 p.m., park it, and return the key. Hulme came back at 9:30 p.m., accompanied by two girls, and asked Poths when he would get off work. Poths told him at about 10:30 p.m., and Hulme said he would be back. Hulme and the girls came back and Poths got in the automobile, drove it, and was driving it at the time of the accident.

Earlier in the afternoon of April 22, Poths told Robert he wasn't going to use the car because of its transmission trouble and Robert said that was good because he didn't want him to use it. Both Poths and Robert stated in substance that Poths would ask permission of Robert, in advance, to use the car, when Robert was at work. Robert said that there was an understanding that Poths would get permission for each occasion when he would use the car.

Thus, the evidence is uncontroverted that Robert had express permission to drive the car to work on the evening in question. He did so, parked it, and removed the key. Likewise, the evidence is undisputed that Hulme had no permission, express or implied, from any source whatsoever, to drive the car; and Poths had no express permission. The right of ...


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