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Burton v. Lee

OPINION FILED NOVEMBER 5, 1976.

DELORES BURTON, PLAINTIFF-APPELLEE,

v.

ROBERT W. LEE, DEFENDANT-APPELLEE. — (JONES BUICK-PONTIAC COMPANY, DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Livingston County; the Hon. WILLIAM T. CAISLEY, Judge, presiding.

MR. PRESIDING JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Plaintiff Burton, sued Lee and Jones Buick for personal injuries sustained when struck by an automobile driven by Lee and owned by Jones Buick. Following the filing of an amended complaint, Jones Buick made demand that Burton admit as facts that Lee was operating the automobile of Jones without the permission, knowledge or authority of Jones and that Lee was operating the Buick for his own purpose and not as an agent or employee of Jones. Burton's response alleged lack of knowledge and neither admitted nor denied the demand.

The issues upon appeal arise from subsidiary proceedings between several insurance companies. State Farm Mutual Automobile Insurance Company had issued a policy upon Lee's automobile and Home Insurance Company provided coverage for Jones Buick under a "garage" policy. Economy Fire and Casualty Company filed a petition to intervene alleging that Burton was its insured under uninsured motorist coverage provided by "Family Protection Coverage." Economy further alleged that two issues under the pleadings were whether Lee was an insured person "under any other automobile liability policy," and whether (1) Lee was operating Jones' automobile as an agent or employee, or (2) with the permission, express or implied, of Jones. The trial court granted leave to Economy to intervene on behalf of Lee as co-defendant.

State Farm Mutual filed a motion alleging that it was defending Lee under a reservation of rights and prayed that the court order attorneys' fees and costs be paid by Home to State Farm:

"If the Court on the hearing for determination of insurance coverage between State Farm Mutual Automobile Insurance Company for the Defendant Lee, and the Home Insurance Company for the Defendant Jones Buick-Pontiac Company, and for Economy Auto, the uninsured motorist coverage of the Plaintiff now set for hearing for June 21, 1974, finds that the insurance coverage of Home Insurance Company covered the Defendant Lee at the time and place of the accident in question or that the Home Insurance Company did and does owe an obligation under the law of the State of Illinois to defend the Defendant, ROBERT W. LEE, in the above captioned cause * * *."

Jones Buick filed a motion which, in part, prayed the court:

"To order that the foregoing conditions be made applicable to the intervenor in this cause, and that in the event non-insurance of the Defendant Robert W. Lee is a disputed question of fact by the parties to this cause, including the intervenor, that such question of fact be submitted to the Court for determination before the trial of the main issues in the within cause; * * *."

An evidentiary hearing was held upon such pleadings. The several parties stipulated to the admission of the respective insurance policies and agreed that the proceedings were in the nature of "an action for declaratory judgment." Section 57.1(2) of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 57.1(2)) provides:

"Subject to rules, declarations of rights, as herein provided for, may be obtained by means of a pleading seeking that relief alone, or as incident to or part of a complaint, counterclaim or other pleading seeking other relief as well, * * *."

From such statutory language it appears that a separate action in declaratory judgment is not required, but that the relief sought in such proceedings may be incidental to and included within other proceedings.

Following the evidentiary hearing, the trial court entered an order finding that Lee was driving the Jones Buick automobile with the permission of Jones, and was an insured person under the policy issued by Home, and further found that by reason of such status Economy had no standing to intervene. The trial court dismissed Economy as an intervenor with the further finding that there was no just reason to delay an immediate appeal. Home appeals.

Contemporaneously, the trial court entered summary judgment in favor of Jones upon Burton's complaint alleging that Lee was acting as an agent or employee of Jones in driving the automobile.

The parties raised no questions of fact concerning the occurrence. Lee, aged 16 years, was employed by Jones Buick, an automobile agency, to do various caretaking jobs. More or less regularly he washed new and used automobiles and incident to such work he was permitted or directed to drive an automobile from its place on the "lot" to the wash rack and to return it to such place after washing. In so doing, Lee never drove off the lot of Jones and he had never been permitted or authorized to drive a Jones car either on or off of the lot for any other purpose or business.

Lee also had the duty of seeing that the cars on the lot were locked when the business was closed. On the date in question, at about 5 p.m., Lee went from car to car to ascertain that they were locked and if not, to lock them. The keys ...


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