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Great Central Insurance Co. v. Harris

OPINION FILED FEBRUARY 28, 1977.

GREAT CENTRAL INSURANCE COMPANY, PLAINTIFF-APPELLEE,

v.

EDWARD J. HARRIS ET AL., DEFENDANTS-APPELLEES. — (FARMERS INSURANCE GROUP, DEFENDANT AND COUNTERPLAINTIFF-APPELLANT.)



APPEAL from the Circuit Court of La Salle County; the Hon. LEONARD HOFFMAN, Judge, presiding.

MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 13, 1977.

This appeal is from an order in a declaratory judgment action determining that, as to damages arising out of a collision involving a garage customer's car driven by a garage employee, insurance coverage must be provided by the car owner's insurer and not by the garage liability insurer.

According to the record, at about 7:10 p.m. on February 28, 1973, Daniel Tipton drove his recently acquired 1966 Chevrolet Impala into the Owens Oil Service Station, owned and operated by Edward J. Harris, in La Salle, Illinois. Tipton testified that after purchasing gasoline for his car from an attendant, he walked away from his car to talk to two friends by the pump. A few minutes later he turned around and saw Phil Croissant, who was a mechanic at the station, getting into the driver's seat of his car. Tipton said he ran over to stop Croissant, but the car doors were locked, and Croissant drove off. A few minutes later, Tipton watched Croissant approaching the station and saw the car suddenly speed up and collide with the rear end of a car stopped for a red light. The latter car then struck another automobile stopped in front of it. The occupants of both stopped vehicles were injured, and subsequently filed a personal injury action against Tipton, Croissant and Harris.

Croissant was a full-time salaried employee of Harris and worked as a mechanic and as the operator of a wrecker service. He had previously worked on Tipton's car, and about one week earlier had been called to the scene of an accident where Tipton's old car had been demolished. Croissant gave a different version of the events preceding this accident. He said that Tipton came into the station office while Mike Kohr, another station employee, put gas in Tipton's car. Croissant asked Tipton how his new car was running, and Tipton replied that something was wrong with it but he didn't know what. Croissant offered to drive it to see what was wrong, and Tipton said he didn't know if he should. While Tipton was paying Kohr for the gas in the back room, Croissant went out on the drive and got in the car. Tipton came over and said that his father wouldn't like for anyone else to drive the car. Croissant then drove off to test the car by driving around the block. As he was returning to the station the carburetor would not release, and he was unable to avoid hitting the car stopped in front of him.

Harris testified that Croissant had gone off duty at 6 p.m. on Feb. 28 and was not employed at the time of the accident. This testimony was contradicted by other witnesses and was not supported by the payroll records. Harris also stated that Croissant had authority to test drive a car only after he had worked on it and only with Harris's express consent and express permission of the owner. Croissant testified that he regularly test drove customer's cars, usually with the customer along or with their permission, and he believed he had Tipton's permission on the day in question. On rebuttal, Harris again testified that Croissant knew he had to have permission of the owner and of Harris before he could test drive a car, but Harris also admitted that Croissant could make diagnostic test drives and that he could do so when Harris was not present.

After the injured persons filed a personal injury suit, Tipton's insurer, Farmer's Insurance Group, undertook the defense of both Tipton and Croissant with a reservation of rights as to Croissant. Great Central Insurance Company, which had issued a garage liability policy to Harris, brought this declaratory judgment action to determine coverage, joining as defendants the injured parties, Harris, Croissant, Tipton, and Farmers.

At the conclusion of the bench trial, the trial court found that at the time of the accident, Croissant was test driving the Tipton auto as a permissive user of Daniel Tipton, that Croissant was not test driving within the scope of his employment, that the automobile business exclusion in the policy issued by Farmers had no application, that Farmers must afford Croissant insurance coverage, and that Harris was not liable as a matter of law and fact. The court then ordered that neither Great Central nor Harris had any obligation to defend Croissant in any action brought by the injured occupants of the rear-ended vehicles, but that Farmers was so obligated. Farmers has appealed, asserting numerous grounds for a reversal.

Farmers first contends that the finding that Croissant was a permissive user was against the manifest weight of the evidence. In its memorandum opinion, the trial court stated that Croissant's version of the circumstances leading up to the accident was more credible than Tipton's account, and that the evidence established that Croissant was a permissive user within the terms of the Tipton policy.

• 1, 2 Since the evidence clearly does not establish actual permission from Tipton to Croissant, the question is whether permission can be implied from the surrounding circumstances. The test for determining implied permission was well stated in Orrill v. Garrett (4th Dist. 1968), 100 Ill. App.2d 194, 198, 241 N.E.2d 1, 3, as follows:

"Implied permission involves an inference or circumstances arising from a course of conduct or relationship between the parties in which there is a mutual acquiescence or lack of objection under circumstances signifying permission. An implied permission is not, therefore, confined alone to affirmative action."

In the case at bar, the sole relationship between the parties was that of a mechanic and customer, and from that fact a legitimate inference can be drawn that Croissant believed he had Tipton's permission to test drive the car. Accepting as we must, the trial court's determination as to the credibility of the witnesses who gave conflicting versions of the conversation between Tipton and Croissant, we cannot say that this finding was contrary to the manifest weight of the evidence.

Once a permissive use is established, the policy issued by Farmers provides coverage under the standard omnibus clause which insures persons using the ...


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