Freeport Motor Cas. Co. v. Tharp

Decision Date26 October 1949
Docket NumberGen. No. 49M5.
Citation88 N.E.2d 499,338 Ill.App. 593
PartiesFREEPORT MOTOR CASUALTY CO. v. THARP et al.
CourtUnited States Appellate Court of Illinois

OPINION TEXT STARTS HERE

The Freeport Motor Casualty Company brought action for declaratory judgment against Hubert Tharp and others, to determine whether an automobile liability policy issued to defendant Wright covered a collision between an automobile driven by Wright but belonging to his brother-in-law and the automobile of the other defendants, when Wright had sold the automobile described in the policy.

The Circuit Court of Clay County, F. R. Dove, J., rendered a decree for plaintiff, and defendants appealed.

The Appellate Court, Culbertson, J., reversed and remanded on ground that the coverage was not terminated by the sale of the automobile originally described in the policy.E. Harold Wineland, Flora, for appellant.

Burrell & Burrell, Freeport, Taylor & Anderson, Effingham, David M. Burrell, Freeport, of counsel, for appellee.

CULBERTSON, Presiding Justice.

This is an appeal from a decree of the Circuit Court of Clay County in an action instituted by Appellee, Freeport Motor Casualty Company (hereinafter called plaintiff), under the provisions of the Declaratory Judgment Act of this State (1947 Illinois Revised Statutes, Chapter 110, Section 181.1).

A declaratory judgment was sought to affirm the plaintiff's construction of an insurance policy previously issued to Charles W. Wright, who entered his appearance in the Court below, but did not contest the suit. The other Appellants, Hubert Tharp and Mildred Tharp, husband and wife, were invoved in a collision between the car driven by Charles W. Wright and defendant, Hubert Tharp. The Tharps had instituted an action against defendant Wright in the Circuit Court of Crawford County, to recover damages resulting from the collision. Two weeks after that suit was instituted the present action under the Declaratory Judgment Act was filed by the plaintiff Insurance Company. In the complaint the plaintiff asked that the Court declare the rights of the parties and construe the policy so as to declare that the liability of the Insurance Company under the policy, ceased at the time when Charles W. Wright, the insured, ceased to be the owner of an automobile or other motor vehicle. The defendants Tharp answered that, by the terms of the insuring agreement, the policy should be construed so as to impose liability upon the plaintiff Company, even though the defendant Wright had disposed of his automobile. The facts are not in dispute.

The plaintiff Insurance Company issued a policy to the defendant, Charles W. Wright, on May 30, 1946, describing a certain automobile, which was amended to describe a certain Ford sedan. The term of the policy was for one year, to expire on May 30, 1947. In the month of November, 1946 the defendant Wright sold the automobile described in the endorsement of the policy for junk because the car had gotten to the stage where it would not run. After the car was sold the defendant owned no automobile. At the time of the collision in question the defendant Wright was driving an automobile that belonged to his brother-in-law. The policy under consideration provided only for bodily injury and property damage liability, and a limited amount for medical payments.

It was disclosed on the trial of the cause that the plaintiff Company, as well as other Companies, issued two general types of policies, one which covers an insured who owned a motor vehicle; and the other, which covered an insured who did not own a motor vehicle. The rate in the latter case for one who did not own a motor vehicle, that is, for so-called ‘Non-ownership policy’ would have been substantially in excess of the rate covering one who owns an automobile, and no medical payment coverage was generally allowed in connection with the so-called Non-ownership policy. In the policy under consideration, in Paragraph V of the Insurance Agreements it is provided, ‘Such insurance as is afforded by this policy for bodily injury liability and for property damages liability with respect to the automobile classified as ‘pleasure and business' applies (1) to the named insured, if an individual and the owner of such automobile * * * with respect to the use of any other automobile by or in behalf of such named insured.’ In ...

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15 cases
  • Rivota v. Kaplan
    • United States
    • United States Appellate Court of Illinois
    • May 20, 1977
    ...automatically suspended all coverage under the policy, including that for non-owned automobiles. (Cf. Freeport Motor Cas. Co. v. Tharp (1949), 338 Ill.App. 593, 88 N.E.2d 499, aff'd, 406 Ill. 295, 94 N.E.2d 139 (1950).) No language in the policy justifies such a construction. Furthermore, a......
  • Otto v. Farmers Ins. Co.
    • United States
    • Missouri Court of Appeals
    • August 8, 1977
    ...(Mo. banc 1972). See also Equity Mutual Insurance Company v. Riley, 475 S.W.2d 416 (Mo.App.1971). In Freeport Motor Casualty Co. v. Tharp, 338 Ill.App. 593, 88 N.E.2d 499, 500-01 (1949), where an insurer attempted to disclaim liability coverage because the insured had previously sold and no......
  • Allstate Ins. Co. v. Skawinski
    • United States
    • United States Appellate Court of Illinois
    • February 21, 1963
    ... ... with Gordon sitting beside him, Skawinski parked the car, with the motor running, facing Gordon's building. He then opened the hood and proceeded ... 86, 89 N.W.2d 412; Panhandle Steel Products Co. v. Fidelity Union Cas. Co., Tex.Civ.App., 23 S.W.2d 799; Christian v. Royal Ins. Co., 185 Minn ... Freeport Motor Casualty Co. v. Tharp, 338 Ill.App. 593, 88 N.E.2d 449; Brookson[40 ... ...
  • Freeport Motor Cas. Co. v. Tharp
    • United States
    • Illinois Supreme Court
    • May 18, 1950
    ...par. 200. The Appellate Court overruled the motion to dismiss, and reversed and remanded, with directions. Freeport Motor Casualty Co. v. Tharp, 338 Ill.App. 593, 88 N.E.2d 499. The merits of the case are not before us here and the sole question is the propriety of the action of the Appella......
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