Appeal from the Circuit Court of Cook County; the Hon. FRANK
H. BICEK, Judge, presiding. Affirmed.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
Rehearing denied and opinion modified October 28, 1969.
This is a garnishment proceeding based upon plaintiff's judgment for personal injuries received when struck by an automobile driven in Chicago by non-owner defendant, Mack Earl Glover, a resident of Alabama. The defendant owners of the automobile, doing business in Alabama as Haynes Motor Company, a partnership, were covered by an automobile insurance policy issued to them by the defendant garnishee, United States Fidelity and Guaranty Company (USF&G). This policy also covered any person using, with the permission of the named insured, an automobile to which the insurance applied.
The garnishment proceedings were conducted without a jury and consisted primarily of exhibits, evidence depositions and the testimony of defendant Glover. The trial court entered a judgment in favor of plaintiff and against the garnishee for $20,000 and costs, from which the garnishee appeals.
On appeal, and after an examination of the record, we conclude the determinative issue is whether the non-owner and nonresident driver, defendant Glover, had the permission of the nonresident defendant owners to drive the car at the time of the occurrence in which plaintiff received his injuries.
In sum, the record shows that plaintiff, a minor, was injured on August 29, 1959, by an automobile owned by Haynes Motor Company and driven by Mack Earl Glover. At the time of the occurrence Glover was insured by State Farm Mutual Insurance Company in the amount of $10,000 for an accident to one person. Haynes Motor Company was insured by USF&G in the amount of $20,000 for an accident to one person.
Plaintiff's suit for personal injuries was filed on August 20, 1960, and personal service of summons was made on defendant, Mack Earl Glover, on September 3, 1960, who answered the complaint on September 19, 1961, and the amended complaint on March 31, 1964. Service of summons on the defendant car owners was made under the provisions of section 9-301, chapter 95 1/2, Ill Rev Stats. The defendant car owners did not defend the suit. At the trial an order was entered on April 17, 1964, "that the defendants, Jack Dollar and Ewell Haynes, individually, and d/b/a Haynes Motor Company, be and are hereby declared to be in default. It appearing service was had on said parties and that no appearance or answer has been filed in their behalf." On April 20, 1964, a jury verdict was returned in favor of plaintiff for $22,500 against the defendants, "Jack Dollar and Ewell Haynes, Individually and d/b/a Haynes Motor Company and Mack Earl Glover." Judgment was entered on the verdict and against the foregoing defendants on May 20, 1964.
The instant garnishment proceedings against the garnishee, USF&G, were commenced on June 8, 1964. USF&G denied indebtedness to any of the defendant-judgment debtors and also filed affirmative defenses to the action. Mack Earl Glover and State Farm Mutual Automobile Insurance Company were granted leave to intervene in the garnishment proceedings. At the conclusion of the garnishment trial the court found that defendant Glover was driving at the time of the accident with permission; that USF&G was the primary carrier with a limit of liability of $20,000 and State Farm was the excess carrier with a limit of liability of $10,000. The court found in favor of plaintiff, the judgment creditor, and entered an order that USF&G pay $20,000 plus interest and costs on the judgment, and that State Farm pay $2,500 plus interest and costs on the same judgment.
Defendant Mack Earl Glover testified for the plaintiff in the garnishment action. He lived in Cullman, Alabama. Ewell Haynes, U.V. Haynes and Jack Dollar also lived in Cullman and operated a business known as Haynes Motor Company. Glover had attended high school with Dollar, and he had known the Hayneses for a number of years. They were all in the used car business in Cullman. They would purchase used cars in Chicago and sell the cars to used car dealers in Alabama.
On August 29, 1959, Glover was in Chicago, as was Jack Dollar, hunting for used cars. Dollar purchased a used car on behalf of Haynes Motor Company. Dollar left the keys in the station wagon and asked Glover if he wanted to use the car. Glover said he would like to use the car. He put his license plates on the car and drove off. He further testified: "In the afternoon of August 29, 1959, I was involved with that car in an automobile occurrence with Cedric Thompson, the plaintiff in the suit. The day after the occurrence I saw U.V. Haynes at O'Connor Service Station and told him exactly what had happened as far as the accident was concerned. He said, `well, forget it.' Neither Jack Dollar, Ewell Haynes or Red Haynes ever accused me of taking that car without their permission."
After Glover was personally served with a summons he talked with G.C. Henslee, an insurance agent in Cullman who represented USF&G. Glover stated: "About two or three weeks after August 29, 1959, he [Henslee] called me to his office and he had a statement typed up for me to sign. The statement said in an around about way that I stole the automobile. I did not sign it. He said he was bringing that document for my signature on behalf of Haynes Motors." On cross-examination, it was shown that Glover was served with summons on September 3, 1960.
The defendant partners in their garnishment evidence depositions stated that Glover was neither their agent nor servant, and they never gave him permission to use the vehicle in question.
G.C. Henslee in an evidence deposition stated: "As agent for United States Fidelity and Guaranty Company, I had a policy of insurance issued to the Haynes Motor Company. It was a garage liability policy. I was not aware of an accident in Chicago on August 29, 1959, until May, 1961." In response to a letter from Mr. L.B. Nicholson, the casualty supervisor for USF&G in Birmingham, dated June 23, 1961, he talked with the Haynes brothers and Jack Dollar. He said: "At that time, we found out through the conversations that Mack Glover was driving an automobile, and, if I remember correctly, it had Culpepper Motors' tag or dealer's license on the car, and they claimed that the car belonged to Haynes Motors, and then I started to try to find out if, by any chance, Glover could have had any permission from the Haynes boys, or anybody else, or their employees to drive that car that belonged to Haynes Motors, and I went to see Glover, or either he came by the office, and told me that he had Jack Dollar's permission to drive the car, but then I talked to Haynes and Jack about it, and they stated that Mack Glover did not have permission to drive any of their vehicles from Jack Dollar at that time. It seems as though Haynes Motors' car had been left at O'Connor's Service Station. They had left the keys there, which they do so the cars can be moved on the lot. . . . Jack Dollar then told me that after he placed the keys there, he just left and came back on to Cullman. All of us were trying to find out what happened, really, and we wanted to know what happened because if it was a claim of ours, we wanted to get on it. . . . No papers were ever turned over by Haynes Motor Company with respect to this claim. We never received any summons and complaint from anybody in this case." He further testified he had a conversation with Mack Earl Glover before July 5, 1961, and "he told me that he did have permission from Jack Dollar."
The garnishment proceedings further show that under date of June 20, 1961, State Farm sent a letter to USF&G confirming a telephone conversation that had been had several weeks earlier. The letter stated that an accident occurred on August 29, 1959, in Chicago, Illinois, and that "the vehicle was operated by our insured, Mack Glover, who stated that the vehicle was owned by the Haynes Motor Company and that he was using the vehicle with the permission of the owners." The letter further stated: "A lawsuit has been filed in the Superior Court of Cook County, No. 60S14686, by Cedric Thompson, a minor, against our insured, Haynes Motor Company and Culpepper Motors. We cannot identify Culpepper Motors, unless it might be another business name for the Haynes Motor Company." The letter further stated that their investigation revealed that ...