Maryland Cas. Co. v. Holmsgaard
| Decision Date | 09 April 1956 |
| Docket Number | Gen. No. 10898 |
| Citation | 10 Ill.App.2d 1,133 N.E.2d 910 |
| Parties | MARYLAND CASUALTY COMPANY, Plaintiff-Appellant, v. John HOLMSGAARD, Ellis L. Grove and Ronald Grove, Defendants-Appellees. . Second District |
| Court | United States Appellate Court of Illinois |
Welsh & Welsh, John T. Holmstrom, Jr., Rockford, for appellant.
Maynard & Maynard, Foltz, Haye & Keegan, Rockford, for appellees.
Appellant, an insurance corporation, brought suit for declaratory judgment against the appellees for construction of a certain policy issued by it to the defendant, Ellis L. Grove. The relief asked for in the complaint was two-fold: (1) that the court declare and determine that the company be not required to defend, and (2) that the company be not required to pay any judgment that might be entered against its assured, or his agent, in a suit brought by defendant, John Holmsgaard, against the assured, Ellis L. Grove, and his agent, Ronald Grove, in the Circuit Court of Winnebago County, Illinois, in Cause No. 65101. The Circuit Court by its judgment and order found that appellant was obligated under the policy of insurance to furnish defense and pay any judgment within the limits of its policy obtained against its assured, Ellis L. Grove, or his agent, Ronald Grove, in said suit brought by John Holmsgaard against them. From said judgment and order this appeal is taken.
Plaintiff's contentions are as follows: (1) the policy of insurance in question excluded from coverage property in the insured's hands as a bailee for hire, or in his care, custody, and control; and therefore by the terms of the policy the company was neither obligated to defend the suit nor to pay any judgment entered against its assured arising out of the occurrence alleged in the amended complaint filed in said Cause No. 65101; (2) that the terms and provisions of the policy of insurance were plain and not ambiguous; and (3) that the judgment and order of the Circuit Court was contrary to the law.
Defendant, John Holmsgaard, was the owner of a 1954 Dodge four-door sedan on July 20, 1954, and his wife drove this car on the above date to the Gem Welding and Machine Shop owned and operated by Ellis L. Grove to have a trailer hitch installed beneath the car by welding to the frame. The automobile was left in said shop. Holmsgaard's amended complaint alleged that the defendant, Ellis L. Grove, by and through his agent and servant, Ronald Grove, was guilty of various negligent acts or omissions, and as a direct and proximate result of the defendants' negligence, the automobile then and there owned by the plaintiff, while under the sole care, custody and control of the defendants, and while the trailer hitch was being welded to the frame by the defendant, Ronald Grove, as said agent, was set on fire or ignited by the welding torch or welding equipment then and there used by said defendant and said automobile was totally consumed and destroyed by fire. At the trial defendant Holmsgaard asked and was given leave to amend the amended complaint in said Cause No. 65101 on its face by striking out the language "sole custody and control" and inserting in lieu thereof, "while in the possession of the defendants as bailees for hire, ***." While the trailer hitch was being welded to the frame by Ronald Grove, as agent of Ellis L. Grove, the automobile was set on fire and totally destroyed.
On October 25, 1953, E.L. Grove, doing business as Gem Welding and Machine Company, was issued Manufacturers' and Contractors' Schedule Liability Policy by the Maryland Casualty Company, which bore number 53-227954 and shows a renewal of identical policies written for prior years. The policy was in effect on July 20, 1954. Ellis L. Grove had paid all premiums due.
The policy states on its face:
In said policy plaintiff insured said Ellis L. Grove as follows:
(1) The ownership, maintenance or use of the designated premises, and all operations which are necessary or incidental thereto, or (2) the maintenance or use of alienated premises as defined herein.
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