Mid-States Ins. Co. v. Brandon
| Decision Date | 03 May 1950 |
| Docket Number | MID-STATES,Gen. No. 44890 |
| Citation | 92 N.E.2d 540,340 Ill.App. 470 |
| Parties | INS. CO. v. BRANDON et al. |
| Court | United States Appellate Court of Illinois |
William Parker Ward, Chicago, for appellant.
Hansen & Hansen, Chicago, Leith M. Hansen, Edgar H. Schroeder, Chicago, of counsel, for appellees Chris G. Brandon and Chris L. Brandon.
Plaintiff instituted an action under the declaratory judgments act, Illinois Revised Statutes 1949, State Bar Association ed., ch. 110, sec. 181.1, seeking to nullify an automobile insurance policy on the ground of misrepresentation by the insured of the ownership of the automobile. Defendants' motion to dismiss the amended complaint was sustained and judgment entered accordingly. Plaintiff appeals.
The complaint alleges in substance that on January 10, 1948 plaintiff issued its usual form of automobile insurance policy for public liability and property damage to defendant Chris G. Brandon, covering the operation of his 1941 Chevrolet automobile for a period of one year; that defendant Chris G. Brandon, aged 50, is a partner in a hoine-remodeling business and father of defendant Chris L. Brandon, aged 21 years, whose occupation is that of a laborer; that on August 12, 1948, defendant Chris L. Brandon, while driving the Chevrolet, collided with an automobile owned by defendant Edgar H. Caryl and operated by his wife Daisy S. Caryl; that the Caryls made claim, for personal injuries and property damage arising out of the collision, against defendant Chris L. Brandon; that after the collision plaintiff for the first time ascertained that defendant Chris L. Brandon was the sole owner and operator of the Chevrolet; that defendant Chris G. Brandon, named in the policy as the insured, has never at any time been the actual owner of the Chevrolet but merely holds the naked legal title to the automobile in his own name for and on behalf of his son, defendant Chris L. Brandon; that at the time of the purchase of the automobile the initial down payment and subsequent payments were made by defendant Chris L. Brandon; that at the time of the purchase of the Chevrolet automobile Chris L. Brandon was a minor; that the insured failed and neglected to inform plaintiff of facts material to the nature of the risk of the insurance to be assumed by plaintiff.
The amended complaint prays that a declaratory judgment be entered declaring the policy of insurance here in controversy null and void as of its inception, and that the court declare plaintiff to be under no obligation to adjust or defend any possible action brought by the defendants or any of them, nor to pay any judgment, interest or costs in any action that may hereinafter be instituted by the defendants.
The pertinent provisions of the policy in question read:
'I Coverage A--Bodily Injury Liability: To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages, including damages for care and loss of services, because of bodily injury, including death at any time resulting therefrom, sustained by any person or persons, caused by accident and arising out of the ownership, maintenance or use of the automobile.
'Coverage B--Property Damage Liability: To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of the ownership, maintenance or use of the automobile.
'III Definition of 'Insured': The unqualified word 'insured' wherever used in coverages A and B and in other parts of this policy, when applicable to such coverages, includes the named insured and, except where specifically stated to the contrary, also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is with the permission of the named insured.'
The basic question presented is whether the statement of ownership in the policy here in controversy was a misrepresentation by the insured materially affecting the risk assumed by the insurer.
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...at 96-97. To the same effect are Standard Accident Ins. Co. v. Starks, 351 F.2d 895 (6th Cir. 1965) and Mid-States Ins. Co. v. Brandon, 340 Ill.App. 470, 92 N.E.2d 540 (Ill.App.1950). A misrepresentation of ownership may, in some cases, be material to the risk assumed by the insurance compa......
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