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State Farm Mut. Auto. Ins. Co. v. Short

JUNE 22, 1970.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, PLAINTIFF-APPELLEE,

v.

PAULETTE SHORT, DONALD MCLEAN, AS ADMINISTRATOR OF THE ESTATE OF ROBERT MOSS, AND COURTIE LA FRANKLIN (LEE) MOSS, DEFENDANTS, PAULETTE SHORT, APPELLANT.



Appeal from the Circuit Court of Madison County, Third Judicial Circuit; the Hon. JAMES O. MONROE, JR., Judge, presiding. Reversed and remanded for trial. Mills, J., dissenting.

MORAN, P.J.

Paulette Short appeals from a summary judgment entered by the trial court of Madison County in favor of the plaintiff, State Farm Mutual Automobile Insurance Company.

Courtie La Franklin (Lee) Moss, hereinafter referred to as Lee Moss, the named insured in plaintiff's liability insurance policy, was the father of Robert Moss who was driving a car owned by his brother, Loren, when it collided with a car driven by the defendant, Paulette Short. Robert Moss was killed in the accident and Paulette Short was injured.

Paulette Short filed suit against the Administrator of Robert's estate and State Farm Mutual Automobile Insurance Company then filed suit against Paulette Short, Lee Moss and the Administrator of the Estate of Robert Moss, seeking a judicial determination that its insurance policy issued to Lee Moss did not furnish coverage to Robert Moss on the date of the accident.

The insuring agreement with respect to non-owned automobiles provided that liability coverage was afforded to any person using the non-owned automobile (which in the case at bar was Robert Moss) if said person was a "resident of the same household" as the named insured, and "provided such use . . . is with the permission of the owner or person having lawful possession of such automobile." Plaintiff's motion for summary judgment claimed that there was no genuine issue of fact as to whether or not Robert Moss was a resident of the same household as that of his father, Lee Moss, at and before the time of the accident in question and even if he were a resident of the same household, he was driving the car involved in the accident without the permission of the owner.

Plaintiff attached to its motion excerpts from the depositions of Lee Moss, Ruth Moss, his wife and the mother of Robert, and Catherine Arnold, a sister of Robert, all of whom testified that Robert Moss was not a resident of the household of Lee Moss at and prior to the accident, and also excerpts from the depositions of Loren Moss and Diana Moss, his wife, who testified that Robert Moss had never driven the car before the night of the accident in question to the knowledge or with the permission of either of them and was driving the car on the night of the accident without their permission.

The defendant, Paulette Short, filed several affidavits in opposition to plaintiff's motion for summary judgment for the purpose of showing that Robert Moss was a resident of the household of Lee Moss at and prior to the time of the accident and that he was driving Loren's car with his express or implied permission on the night of the fatal accident.

The trial court in granting plaintiff's motion held that the counteraffidavits filed by defendant, Paulette Short, were worthless in that they failed to comply with Supreme Court Rule 191 because they consisted of conclusions, hearsay and inadmissible inferences. Supreme Court Rule 191 provides:

(a) Requirements. Affidavits in support of and in opposition to a motion for summary judgment and affidavits under section 48 of the Civil Practice Act shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; shall have attached thereto sworn or certified copies of all papers upon which the affiant relies; shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto. If all the facts to be shown are not within the personal knowledge of one person, two or more affidavits shall be used.

We first consider whether there was a genuine issue of fact as to whether or not Robert Moss was a resident of the same household as that of his father, Lee Moss at and before the time of the accident in question.

One of the affidavits filed by defendant to prove Robert Moss resided in the household of Lee Moss was made by Kenneth and Queenie Herron which reads as follows:

"Our names are Kenneth and Queenie Herron, husband and wife, Bethalto, Illinois.

"We are adults and until May 23, 1966 we lived on First Street, Forrest Homes Addition to Cottage Hills, Illinois. When at that address, we lived on the next street from Lee Moss, our house was about one block north and one-half block west of Lee Moss' house.

"I, Kenneth Herron, worked under Lee Moss when he was foreman of a labor crew on the Illinois State Highway Department. We both knew the family well.

"We moved out to our present address on May 23, 1966. The reason we know the date is because it is the birthday of our son, Charles Edward Herron.

"Robert Moss was not married and lived at home with his parents, Mr. and Mrs. Lee Moss, on Lee Avenue, Cottage Hills, Illinois. He was in service and was away from home from time to time but we never knew of him living any place besides with his parents when he was in this area.

"We knew Robert off and on for several years and saw him coming and going from Lee's house on several occasions the last two or three months that we lived on First Street in Cottage Hills.

"The facts stated herein are to our personal knowledge and we can testify competently thereto ...


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