Caster v. Motors Ins. Corp.

• Decision Date: 12 January 1961
• Docket Number: No. 60-0-10,60-0-10
• Citation: Caster v. Motors Ins. Corp., 28 Ill.App.2d 363, 171 N.E.2d 425 (Ill. App. 1961)
• Parties: L. E. CASTER, Doing Business as Caster Motor Sales, Plaintiff-Appellee, v. MOTORS INSURANCE CORPORATION, a Foreign Corporation Licensed to do Business in the State of Illinois, and Francis Woodside, Defendants-Appellants, Harold Dempsey, Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 425

171 N.E.2d 425

28 Ill.App.2d 363

L. E. CASTER, Doing Business as Caster Motor Sales, Plaintiff-Appellee, v. MOTORS INSURANCE CORPORATION, a Foreign Corporation Licensed to do Business in the State of Illinois, and Francis Woodside, Defendants-Appellants Harold Dempsey, Defendant-Appellant.

No. 60-0-10.

Appellate Court of Illinois, Fourth District.

Jan. 12, 1961.

E. Charles Geittmann, Metropolis, for appellants.

R. K. Peek, Du Quoin, for appellee.

CULBERTSON, Presiding Justice.

This cause originated in a complaint for declaratory judgment against defendants, Motors Insurance Corporation and Francis Woodside, and Harold Dempsey, by plaintiff, L. E. Caster, Doing Business as Caster Motor Sales.

In May of 1956 the defendant, Harold Dempsey, went to Caster Motor Sales for the purpose of negotiating for the purchase of an automobile. He took a 1955 Chrysler automobile valued at $2,995 from the plaintiff Agency for demonstration purposes with the permission of a salesman of plaintiff. He pointed out things which were wrong with the automobile and apparently certain defects were corrected, and thereafter he discussed terms of purchase of the automobile and was given permission to use the car either until Saturday, or the following Monday morning, for the purpose of driving to Chicago over the weekend in an effort to determine whether he would buy the automobile. The defendant, Harold Dempsey, changed his mind about going to a suburb of Chicago and instead drove 340 miles to Du Quoin, Illinois, arriving there early in the morning on Saturday, May 12, 1956. He exchanged cars with a friend, defendant Francis Woodside, and while defendant Woodside drove the automobile Dempsey had obtained from the Caster Motor Sales and which he was considering purchasing, he, defendant Dempsey, drove the Woodside automobile. While Woodside was driving the Chrysler automobile at a high rate of speed, he lost control of the car and collided with various objects, causing total destruction of the automobile.

At that time and place defendant Woodside had a policy of collision insurance in force with defendant, Motors Insurance Corporation, which policy provided among other things, that during the policy period the insured was covered by the insurance coverage in the policy 'with respect to any other private passenger automobile while being operated or used by such insured.' The policy of insurance also contained an exclusion applying 'to any accident arising out of the operation of an automobile sales agency, repair shop, service station, storage garage, or public parking place.' On the trial before the Circuit Court without a jury, an order was entered finding that defendant, Motors Insurance Corporation and Francis Woodside, and defendant Harold Dempsey, owed the sum of $2,995 to plaintiff-appellee, L. E. Caster, doing business as Caster Motor Sales.

The basic question before us is one of construction of the insurance policy referred to. Insurance policies are construed liberally in favor of the insured and strictly as against the insurer (Sheffer v. Suburban Casualty Co., 18 Ill.App.2d 43, 46, 151 N.E.2d 429). The burden is on an insurer to show affirmatively that the loss was within the exclusion (Goldfarb v. Maryland Casualty Co., 311 Ill.App. 568, 37 N.E.2d 376; Wilson v. National Automobile & Casualty Ins. Co., 22 Ill.App.2d 34, 37, 159 N.E.2d 504).

It is apparent from...