{
  "id": 2910812,
  "name": "Joan A. Vesely, Admr. of the Estate of Frank Leimgruber et al., Plaintiffs-Appellees, v. Prestige Casualty Company et al., Defendants-Appellants",
  "name_abbreviation": "Vesely v. Prestige Casualty Co.",
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  "last_updated": "2023-07-14T21:04:19.595106+00:00",
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  "casebody": {
    "judges": [],
    "parties": [
      "Joan A. Vesely, Admr. of the Estate of Frank Leimgruber et al., Plaintiffs-Appellees, v. Prestige Casualty Company et al., Defendants-Appellants."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE SCHWARTZ\ndelivered the opinion of the court:\nThis action was brought by Joan A. Vesely, as administrator of the estate of her father, and by Frank Vesely, her husband. They sought a declaratory judgment finding that an automobile insurance policy issued by defendants covered the decedent, Leimgruber, and Frank Vesely, his son-in-law, when the automobile named in the policy was involved in a collision on February 13, 1968. The trial court entered a \u25a0summary judgment in favor of the plaintiffs. The defendants have appealed, contending that a condition in the policy excluded coverage when the automobile was being operated by Frank Vesely. Plaintiffs have not filed a brief or appearance in this court, and this fact in itself warrants a reversal of the judgment. However, we have determined that the ends of justice are better served if we examine the issues and render an opinion. Daley v. Jack\u2019s Tivoli Liquor Lounge, Inc., 118 Ill.App.2d 264, 254 N.E.2d 814; Perez v. Janota, 107 Ill.App.2d 90, 246 N.E.2d 42; Matyskiel v. Bernat, 85 Ill.App.2d 175, 228 N.E.2d 746.\nThe policy in question became effective on April 28, 1967. It contained a clause entitled \u201cAutomobile Endorsement\u201d which excluded coverage when the automobile was being operated by Frank Vesely. The endorsement was signed by Leimgruber and purportedly by Vesely. Vesely contends that the signature appearing on that document is not his.\nOn February 13, 1968, the insured vehicle was involved in a collision which occurred when Vesely, who had been driving, stopped the car, left the engine running and went into a package store to purchase liquor. At the time of the collision Leimgruber was in the passenger seat of the car.\nIn support of his motion for summary judgment, Vesely alleged in an affidavit that Leimgruber had forged his signature on the restrictive endorsement. Summary judgment was entered in favor of Vesely and the court subsequently found that both plaintiffs were covered by the policy.\nDefendants contend that Vesely had a bad driving record and that Leimgruber had previously been denied insurance due to the high Occident frequency of Vesely. The endorsement was therefore an inducement to the defendants to accept the risk, and as such, must be given effect whether Vesely s signature was forged or not.\nThe issue on which this case rests is whether Vesely continued to \"operate\u201d the vehicle at the time of the accident, notwithstanding the fact that he had left the automobile to go into a store. The word \u201coperate\u201d is not limited to a state of motion produced by the mechanism of the car. Leaving an automobile when its engine is running, while the driver goes into a store \u2014 obviously, with the intent of making a quick purchase \u2014 is in substance a continued operation of the car by the driver. In Todd v. Borowski, 25 Ill.App.2d 367, 378, 166 N.E.2d 296, 302, the court said:\n\u201cThe phraseology \u2018operating his automobile\u2019 is not necessarily limited only to a state of physical motion produced by the mechanism of the car, but it includes at least ordinary stops in, on, and about the highway, and those are to be regarded as fairly incidental to the operating thereof: Commonwealth v. Henry (1917), 229 Mass. 19, Hand v. Frazer (1931), 248 N.Y.S. 557.\u201d\nIn Hand v. Frazer, 248 N.Y.S. 557, the defendant contended that \u201cas the accident involved in the case occurred while defendant\u2019s truck was standing or parked by a highway, the truck was not then \u201cbeing operated\u2019 within the meaning of section 52 of the Vehicle and Traffic Law, * * *\u201d The court nevertheless held that the truck was being being operated and cited Commonwealth v. Henry, 229 Mass. 19, 22, 118 N.E. 224, 225. The court in Henry stated that \u201c[t]he word \u2018operated\u2019 is not, as the defendant contends, limited to a state of motion produced by the mechanism of the car, but includes at least ordinary stops upon the highway, and such stops are to be regarded as fairly incidental to its operation.\u201d\nIn the case before us the stop made by Vesely was incidental to the operation of the automobile, and our conclusion is that Vesely was operating the car at the time of the collision. As the policy did not afford coverage when Vesely was operating the automobile, the decision of the trial court must be reversed.\nJudgment reversed.\nSTAMOS, P. J., and LEIGHTON, J., concur.\nSUPPLEMENTAL OPINION\nAfter the foregoing opinion had been agreed upon and substantially completed, plaintiffs made a motion for leave to file an answering brief or, in any event, that the court should decide the case on its merits. We have rendered the opinion on the merits and have concluded that it should stand as final.",
        "type": "majority",
        "author": "Mr. JUSTICE SCHWARTZ"
      }
    ],
    "attorneys": [
      "Greenbert, Ziv & McCarthy, of Skokie, (Sherwin Greenberg, of counsel,) for appellants.",
      "Kenneth Orth, of Hickory Hills, for appellees."
    ],
    "corrections": "",
    "head_matter": "Joan A. Vesely, Admr. of the Estate of Frank Leimgruber et al., Plaintiffs-Appellees, v. Prestige Casualty Company et al., Defendants-Appellants.\n(No. 55046;\nFirst District\nMarch 14, 1972.\nRehearing denied April 11,1972.\nGreenbert, Ziv & McCarthy, of Skokie, (Sherwin Greenberg, of counsel,) for appellants.\nKenneth Orth, of Hickory Hills, for appellees."
  },
  "file_name": "0726-01",
  "first_page_order": 746,
  "last_page_order": 749
}