{ "id": 3274570, "name": "Marvin Jefson for Use of Elaine Alber, Administratrix of the Estate of Walter Alber, Deceased, Appellee, v. London Guarantee and Accident Company, Ltd., Appellant", "name_abbreviation": "Jefson ex rel. Alber v. London Guarantee & Accident Co.", "decision_date": "1937-12-15", "docket_number": "Gen. No. 39,445", "first_page": "97", "last_page": "107", "citations": [ { "type": "official", "cite": "293 Ill. App. 97" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "207 Wis. 445", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8692366 ], "opinion_index": 0, "case_paths": [ "/wis/207/0445-01" ] }, { "cite": "101 Conn. 369", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 1643655 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/conn/101/0369-01" ] }, { "cite": "280 Ill. App. 201", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5620194 ], "opinion_index": 0, "case_paths": [ "/ill-app/280/0201-01" ] }, { "cite": "157 Tenn. 301", "category": "reporters:state", "reporter": "Tenn.", "case_ids": [ 8533478 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/tenn/157/0301-01" ] }, { "cite": "277 Ill. App. 140", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5553293 ], "opinion_index": 0, "case_paths": [ "/ill-app/277/0140-01" ] }, { "cite": "161 Atl. 496", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "35 F. (2d) 104", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1765881 ], "year": 1932, "opinion_index": 0, "case_paths": [ "/f2d/35/0104-01" ] }, { "cite": "26 F. (2d) 76", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1723191 ], "year": 1929, "opinion_index": 0, "case_paths": [ "/f2d/26/0076-01" ] } ], "analysis": { "cardinality": 741, "char_count": 16751, "ocr_confidence": 0.525, "pagerank": { "raw": 2.3810447184563636e-07, "percentile": 0.7968188492842633 }, "sha256": "a34c303fb0ea871f329409d759982ed3e2d85fb4205a0ea681b8acc155e6ca78", "simhash": "1:b242b3c20eb48bb4", "word_count": 2946 }, "last_updated": "2023-07-14T21:25:40.156674+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Marvin Jefson for Use of Elaine Alber, Administratrix of the Estate of Walter Alber, Deceased, Appellee, v. London Guarantee and Accident Company, Ltd., Appellant." ], "opinions": [ { "text": "Mr. Justice Denis E. Sullivan\ndelivered the opinion of the court.\nThis is an appeal taken from a judgment entered in the circuit court in favor of Marvin Jefson for use of Elaine Alber, administratrix of the estate of Walter Alber, deceased, and against the garnishee, London Guarantee and Accident Company, Limited, a corporation, in the sum of $10,457.66. The cause was tried before the court without a jury.\nThe evidence shows that the London Guarantee and Accident Company had issued a policy of liability insurance to Louisa B. Jackson. The question arising on this appeal is whether Marvin Jef son, who was employed by Mrs. Jackson as a chauffeur and houseman and who was driving Mrs. Jackson\u2019s automobile at the time of the accident, was an additional assured under the policy aforesaid.\nPlaintiff contends that Jefson was an additional assured under the policy, while the garnishee denies that Jefson was driving the automobile with the consent of the assured and argues that there is no liability whatsoever under paragraph 9 of its policy, commonly referred to as the omnibus clause.\nA stipulation of facts was entered into between the parties hereto, upon which the case will be considered. The stipulation reads as follows:\n\u201cStipulation of Facts:\n\u201c1. That on June 23, 1934, the garnishee insurance company issued to Mrs. Louisa B. Jackson, who is one and the same person as Mrs. Arthur S. Jackson, a certain policy of automobile public liability insurance No. KD 776656, an exact copy of which policy is attached hereto as Exhibit \u2018A\u2019 and made a part hereof. The policy was in full force and effect on August 11, 1934.\n\u201c2. At that time Mrs. Jackson lived on her estate on Waukegan Boad in Lake Forest, Illinois, somewhat northwest of the city of Lake Forest, Illinois.\n\u201c3. Waukegan Boad is a road which runs in a generally northerly and southerly direction somewhat west of the city of Lake Forest, Illinois.\n\u201c4. Milwaukee Avenue is a road which, starting in the city limits of Chicago, runs therefrom in a northwesterly direction to Wheeling, Illinois, and thence almost due north. That at the latitude of Lake Forest and of the home of Mrs. Jackson on Waukeg'an Boad, Milwaukee Avenue and Waukegan Boad run substantially parallel in a north and south direction at a distance in excess of three and one-half (3%) miles apart.\n\u201c5. That the map attached hereto as Exhibit \u2018B\u2019 is hereby made a part hereof and incorporated herein by express reference and shall be considered as having been introduced in evidence and as accurate.\n\u201c6. Prior to this date Mrs. Jackson applied to the Secretary of State of Illinois and there was issued to her, an automobile license for the year 1934, No. 1282 for a Chrysler coupe, year 1933, Factory No. 7532094, Engine No. C. Q. 4246. This automobile was described in statement 4 of the above mentioned policy of insurance.\n\u2018 \u2018 7. Marvin J ef son was, on August 11, 1934, in the employ of the defendant, Mrs. Jackson, as a chauffeur and houseman. About six o\u2019clock on the evening of August 11,1934, he asked Mrs. Jackson for permission to take the above mentioned Chrysler coupe to g*o and have a hair-cut in Lake Forest. The other male employee of Mrs. Jackson was taking* his evening* off and Mrs. Jackson replied that it was impossible that Mr. Jefson should go. He said it would only take half an hour, and she replied, \u2018Do you think in half an hour you can get a hair-cut? You know the rule is, there must be one driver on the grounds.\u2019 He said he could do it. Whereupon Mrs. Jackson said that if he would be back in half an hour he could take it.\n\u201c8. The servants of Mrs. Jackson did not have standing permission to use cars. When they went on errands for her that was a different thing, but for their personal use they were never permitted to use the cars without coming to her. On one occasion she had loaned a car to one of the servants to drive into Chicago to go to a funeral.\n\u201c9. Mr. Jefson, immediately after the above conversation, took the automobile. He did not go to any barber shop in Lake Forest. Mr. Jefson drove south on Waukegan Road to the Half Day Road. He drove west on the Half Day Road to Milwaukee Avenue; then south on Milwaukee Avenue to the home of his sister, who was absent, the location of which home is marked on the map by the letter \u2018A.\u2019 This home was south of the village of Half Day. Then he drove southeastward on Milwaukee Avenue to Chicago, and into the neighborhood of North Avenue and Sedgwick Street, to an address at 434 Sullivan Street, the location of which on the map is marked by the letter \u2018B.\u2019 Later in the night he was driving northwestward on Milwaukee Avenue and south of the village of Wheeling, and at a point on the map marked with the letter \u2018 C\u2019 he collided with a motorcycle and another automobile parked on the east side of the pavement, causing the death of the plaintiff\u2019s intestate. At this time he was on his way to his sister\u2019s home. Her name was and is Mrs. Alice Weber. The location upon the map of Louisa B. Jackson\u2019s home is marked with the letter \u2018D.\u2019 The route taken by Mr. Jefson after he left her home to the address at 434 Sullivan Street is marked on the map with a green crayon. The route taken by Mr. J ef son after he left 434 Sullivan Street and to the point of the accident was the same route reversed to the point of the accident.\n\u201c10. Elaine Alber is the duly appointed, qualified and acting administratrix of the estate of Walter Al-ber, deceased, by appointment of the Probate Court of Cook County, Illinois.\n\u201c11. As such administratrix she brought suit against Louisa B. Jackson and Marvin Jefson in the Circuit Court of Cook County, Illinois, case No. 35C 3454 and recovered a judgment in the sum of Ten Thousand Dollars ($10,000) and costs against Marvin Jefson. Upon the trial of that case there was a finding in favor of Louisa B. Jackson, and the case was dismissed as to her.\u201d\nThe facts have been presented by stipulation so apparently no controversy exists as to them. As we view this case the only question to be determined is one of law, namely, \u201cWhat is the -legal meaning of the additional assured clause as contained in the automobile insurance policy? \u201d The insurance policy in this case contains the following clause: \u201cSec. 9. Additional Assured. The term \u2018Named Assured\u2019 shall mean only the Assured specified in Statement 1, but the term \u2018Assured\u2019 shall include the named Assured and any other person while riding- in or legally operating such automobile, and any other person ... legally responsible for its operation, provided: (a) it is being used with the permission of the named assured . . .; (b) such other person or organization is not covered by any valid and collectible insurance against a loss covered thereby; ...\u201d\nFrom the facts as stipulated, Mrs. Jackson gave permission to her chauffeur and houseman Jefson to drive her automobile on the evening* of August 11, 1934; that this permission was given to him about 6 o \u2019clock in the evening as he said he wished to take the Chrysler coupe and go to Lake Forest to get a haircut; that Jefson told Mrs. Jackson that it would only take him, a half hour; that Mrs. Jackson asked him if he thought he could get a haircut in a half hour and reminded him of the rule that there had to be one driver on the grounds; that the other male employee of Mrs. Jackson\u2019s was taking the evening* off; that Jefson said he could get a haircut in that time, whereupon Mrs. Jackson said that if he could be back in a half hour he could take the car, whereupon he took the car and drove away and according* to the stipulation of facts he was gone several hours; that during that period of time the automobile accident occurred, resulting* in the death of Walter Alber.\nThe first question confronting us is: Was Jefson made another assured by the permission given by Mrs. Jackson for him to use the automobile? We think from the facts stipulated there can be no doubt that immediately upon the permission being* given, Jefson was am, additional assured in accordance with section 9 of the insurance policy.\nThat brings ns to another question: Could a limitation be placed upon that permission by the statement of Mrs. Jackson, that if he could get his haircut in a half hour he could take the automobile, when there is no'such limitation as to permission expressed in the language used in the policy?\nCounsel for defendant argues that the clause in the policy is subject to a reasonable limitation applying' to the time when the permission was given and also as to where the driver should go after the permission was granted. In support of his contention the defendant recites some authorities outside this jurisdiction. Frederiksen v. Employers\u2019 Liability Assur. Corp., Ltd., of London, England (1928), 26 F. (2d) 76; Trotter v. Union Indemnity Co. (1929), 35 F. (2d) 104; Johnson v. American Automobile Ins. Co. (1932), 161 Atl. 496.\nThe questions here involved have heretofore been considered by this court in two cases in which the construction of the clause of the policy relating to additional assureds was considered. The case of Jackson for Use of Schaer v. Bankers Indem. Ins. Co. (1934), 277 Ill. App. 140, leave to appeal was denied by the Supreme Court. The facts in that case were that Fisher, a friend of Jackson\u2019s, obtained the latter\u2019s permission to use his automobile for the purpose of doing an errand and after having performed the errand Fisher went on a \u201cjoy ride\u201d which resulted in an accident. The insurance company in that case contended that at the time of the accident the driver was not operating the automobile with the permission of the named assured. The company contended that at the time and place of the accident the driver was no longer using the automobile with permission, and in the Jackson case, supra, the court in quoting from the case of Stovall v. New York Indemnity Co., 157 Tenn. 301, said:\n\u201cIt is our opinion that the words \u2018providing such use or operation is with the permission of the named assured, \u2019 were intended to exclude from the protection of the policy a person who should take the automobile and use it without permission or authority in the first instance. If, however, the automobile covered by the policy is delivered to another for use with the permission of the owner or insured, his subsequent use of it is with the permission of the insured, within the meaning of the policy, regardless of whether the automobile is driven to a place or for a purpose not within the contemplation of the insured when he parted with possession.\u201d That court further held that the use of the car was subsequent to permission and that the coverage in the policy applied.\nIn the case of Karton v. New Amsterdam Cas. Co., 280 Ill. App. 201, the insurance policy therein involved contained the following* clause:\n\u201cTo Extend the insurance provided by this Policy, so as to be available, in the same manner and under the same conditions as it is available to the named Assured, to any person or persons while riding* in or legally operating any of the automobiles described in the Schedule, . . . provided such use or operation is with the permission of the named Assured.\u201d\nThe facts in the case from which we have just quoted, were that a Mrs. Shepard owned a certain automobile which was covered by a policy of insurance issued by the New Amsterdam Casualty Co.; that she and a police officer, who was a friend of hers, had been riding and returned to her home about 12:30 in the morning; that the police officer lived four or five blocks from her home and she told him that he could take the automobile to g*o to his home and to bring it back the next morning; that Weiss, the police officer, drove away in the automobile of the assured, but did not go to his home; that he drove arofind Chicago, got drunk, and about 5:30 o\u2019clock in the morning was driving the car about five miles from Mrs. Shepard\u2019s home at a speed of between 70 and 90 miles an hour; that he ran head on into a truck, killing himself and injuring two other men. Suit was brought against his estate and judgment obtained. The insurance company contended that the police officer was not using the automobile at the time of the accident with the permission of the owner within the meaning of the policy; that the owner did not give the police officer permission to drive the automobile to other places around Chicago as he was doing at the time of the accident. The plaintiff contended that since the police officer was permitted to take the automobile in the first instance, there was a liability although he did not drive to his home, but many miles distant. The court quoted with approval from Dickinson v. Maryland Casualty Co., 101 Conn. 369, where that court held on a similar statement of facts that the insurance company\u2019s position could not be maintained in the absence of an express provision in the policy. Also, that the policy could not be narrowly construed in its favor to limit its liability to such injuries only as might occur during the use of the automobile for the specified purpose and in the specified manner for which the permission was granted.\nIn the Karton case, supra, the court at page 206, in quoting from the Dickinson v. Maryland Casualty Co., 101 Conn. 369, said:\n\u201cThe fact that the insurer in this case did not so restrict the term \u2018permission\u2019 is strong evidence that it did not by this provision intend this. To justify the strict construction claimed by the insurer, the terms of the policy prepared by the defendant ought to specifically so provide. The construction claimed by the defendant would convert all cases of this character into a contest as to the exact words spoken when permission was secured, and to an attempt upon the trial to convert by refinement any use of the car into a departure sufficient to annul the permission granted. \u2019 \u2019.\nContinuing our reference to the Karton case, supra, this court in that case upheld the decision in the case of Stovall v. New York Indem. Co., 157 Tenn. 301. In the Stovall case the driver got permission to use an automobile \u25a0 covered by a policy of insurance, for the purpose of driving persons around the City of Memphis, Tenn. After having secured permission, he drove the car on a special trip of his own, a considerable distance into Mississippi and while in Mississippi injured a person with the automobile. The court held that \u201cpermission\u201d bound the insurance company, citing Drewek v. Milwaukee Auto. Ins. Co., 207 Wis. 445. In the latter case it is contended that the term \u201cpermission of the named insured\u201d was intended to cover persons using the automobile with the insured\u2019s consent in the first instance, regardless of the use such person thereafter made of the automobile.\nIt appears to us that if the assured in an automobile policy were able to limit the meaning of the word \u201cpermission,\u201d both as to the length of time the permission be granted, as well as to where such automobile should be driven, and any nonobservance of such restrictions would relieve the insurance company of any liability, this would result in some absurd situations. If, for example in the instant case, at the expiration of one-half hour, Jefson was unable to have his haircut and reach home within that period of time, then somewhere en route the permission would expire and he would become a trespasser and would be guilty of a misdemeanor under- the laws of the State as driving without the consent of the owner. We are inclined to believe that such restriction and limitation could not be placed on the permission given under the terms of the policy. Permission to use an automobile is either granted or it is not granted and we do not believe the assured can limit the scope of such permission either as to time or place. We do not think the language of the policy admits of any such construction.\nPlaintiff asks that this case be dismissed or affirmed with an assessment of 10 per cent damages, as provided by ch. 110, 1i 215, sec. 87, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 104.087, known as the Practice Act. This suit was fully prosecuted and the appeal was not dismissed. Consequently, the said section does not apply.\nFor the reasons herein given the judgment of the circuit court is affirmed.\nJudgment affirmed.\nHebel, P. J., and Hall, J., concur.", "type": "majority", "author": "Mr. Justice Denis E. Sullivan" } ], "attorneys": [ "Miller, Gorham, Wales & Adams, for appellant; Edward B. Adams and Herbert C. De Young, of Chicago, of counsel.", "Alfred Boy Hulbert, of Chicago, for appellee." ], "corrections": "", "head_matter": "Marvin Jefson for Use of Elaine Alber, Administratrix of the Estate of Walter Alber, Deceased, Appellee, v. London Guarantee and Accident Company, Ltd., Appellant.\nGen. No. 39,445.\nOpinion filed December 15, 1937.\nRehearing denied December 28, 1937.\nMiller, Gorham, Wales & Adams, for appellant; Edward B. Adams and Herbert C. De Young, of Chicago, of counsel.\nAlfred Boy Hulbert, of Chicago, for appellee." }, "file_name": "0097-01", "first_page_order": 157, "last_page_order": 167 }