Gallopin v. Cont'l Cas. Co.
| Decision Date | 03 May 1937 |
| Docket Number | Gen. No. 39258. |
| Citation | 290 Ill.App. 8,7 N.E.2d 771 |
| Parties | GALLOPIN v. CONTINENTAL CASUALTY CO. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Appeal from Municipal Court of Chicago; Charles F. McKinley, Judge.
Action by Gustavo G. Gallopin against the Continental Casualty Company. Judgment for defendant, and plaintiff appeals.
Affirmed.
MATCHETT, P. J., dissenting. Lou Nathanson, of Chicago (Joseph J. Ticktin, of Chicago, of counsel), for appellant.
George C. Bliss and Abraham Lepine, both of Chicago, for appellee.
Plaintiff recovered a judgment of $1,000 against W. A. Blinn, Jr., because of his negligent driving of an automobile which belonged to the Illinois Hertz Drivurself Stations, Incorporated. Plaintiff brought the instant suit to recover the amount of this judgment on defendant's policy of insurance, and upon trial by the court the judgment was against him, from which he appeals.
Under the Motor Vehicles Act, Smith-Hurd Ill.Stats. c. 95 1/2, § 63, Ill.Rev.Stats. 1935, c. 95a, par. 47(1), the owner, being in the business of renting out motor vehicles, is obligated to place on file with the Secretary of State a motor vehicle liability policy. By the terms of this policy the defendant became liable to “pay and satisfy within thirty days after it becomes final any judgment rendered against said owner and/or customer, and/or person operating such motor vehicle with the customer's express or implied consent * * *” for injury or damages to property. (Note the “and/or”--a kind of verbal teratism.)
Plaintiff argues that by this policy defendant is obligated to him for the payment of the $1,000 judgment against Blinn. Defendant argues that it becomes liable only for accidents occurring while the motor vehicle is operated by a customer of Hertz, the owner, or any person operating it with the customer's express or implied consent, and says that Blinn was not operating the automobile with the express or implied consent of a customer.
The supervisor of the Hertz station testified that when a person applies for a car he is given an application blank to fill out with his name, his address, occupation, description, and his signature; they then check up on this application and if the applicant is O. K. his name is placed on a register of customers and an identification card is mailed him; a person wishing to rent a car must display the identification card and sign a rental ticket; cars are rented only to persons having identification cards.
The name of M. Dowden was on this list of customers. Dowden testified that one day while on the beach he took off his coat and laid it down and engaged in a game of ball; that he had his identification card in the pocket of his coat, but that the next day when he looked for it it was gone; Charles Ernst was seen on the beach while Dowden was there; Ernst was not on the list of customers of the Hertz station, but on September 23, 1929, the day Dowden lost his card, Ernst applied to the Hertz station for a car; he told the manager of the station that he was Dowden; the manager looked through their list of customers and found the name of M. Dowden; Ernst had in his possession the identification card made out to Dowden and presented it to the manager and signed a receipt for the car in the name of M. Dowden; it also appears that Ernst, by these means, got possession of the car at the request of his friend, Blinn, who wanted a car to take some girls riding; Blinn furnished the $10 deposit Ernst made with the Hertz station, to be applied on the rental of the car; Blinn says that he had Ernst do this for him as he, Blinn, was a minor and knew that the Hertz station would not let him have a car. Ernst and Blinn rode off with the car and after Ernst was taken to his home Blinn proceeded with his ride, during which he collided with the car driven by the plaintiff, Gallopin. Plaintiff brought suit against Blinn, who did not appear and permitted judgment of $1,000 to be entered against him by default.
The court properly found as a fact that on the day the car was taken the Hertz station did not have a customer by the name of Charles Ernst and that Ernst obtained possession of the automobile by falsely representing to the Hertz station that he was a customer by the name of M. Dowden and by signing the name of M. Dowden to the rental agreement.
It is conceded that Blinn was driving the automobile with the consent of Ernst. The question is, Was Ernst a “customer” of the Hertz Stations as that word is used in the policy sued on?
The rule construing insurance policies most strongly against the insurer in case of ambiguity is not applicable to provisions of a policy prescribed by statute. The language of the policy imposing liability (except as to the senseless “and/or”) follows precisely the language of the statute. The rule does not apply when the wording is not that of the insurer but is taken from the statute. MacBey v. Hartford Accident & Indemnity Co. (Mass.) 197 N.E. 516, 106 A.L.R. 1248;Frozine v. St. Paul F. & M. Ins. Co., 195 Wis. 494, 218 N.W. 845;Sturgis Nat. Bank v. Maryland Casualty Co., 252 Mich. 426, 233 N.W. 367. The opinion in North West Cab Co. v. Central Mut. Ins. Co., 266 Ill.App. 192, is not to the contrary. In that case was involved only the question of the territory covered by the policy.
Plaintiff cites a number of cases which seem to hold that in case of a sale of personal property the seller contracts with the individual who stands before him although such individual represents himself as some one else. In the instant case there was no sale of the automobile to Ernst and no question involved of passing title to him, which was the question in the cases cited. Here we have a temporary rental under an agreement bearing the signature of M. Dowden, defendant's customer, which provides that it is a contract of renting only and not of sale and that the renter will return the automobile in as good condition as it was when received by him and will comply with all of the conditions in the insurance policy applying to the automobile; also pay the cost of replacing any damage to the vehiclewhile rented, except where the customer satisfies the owner that he was free from all negligence.
These provisions of this rental agreement emphasize the necessity that the renter should be on the list of customers, with an identification card issued after an investigation which satisfied the Hertz Stations that the renter was a fit and proper person who...
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