Midden v. Allstate Ins. Co.

Decision Date19 October 1955
Docket NumberGen. No. 10007
Citation7 Ill.App.2d 499,129 N.E.2d 779
PartiesJohn B. MIDDEN, Administrator of the Estate of Theresa Midden, deceased, John B. Midden and Gertrude Ann Midden, Plaintiffs-Appellees, v. ALLSTATE INSURANCE COMPANY, a Corporation, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Giffin, Winning, Lindner & Newkirk, Springfield, Alfred F. Newkirk, James M. Winning, Springfield, of counsel, for appellant.

Roberts & Kepner, Springfield, Mark O. Roberts, Maurice W. Kepner, Springfield, of counsel, for appellees.

REYNOLDS, Justice.

This is defendant Allstate Insurance Company's appeal from judgments of the Circuit Court of Sangamon County entered upon jury verdicts in favor of plaintiffs in their action brought upon an automobile public liability insurance contract issued by defendant to one Joseph Ingolia. The evidence showed the material facts surrounding the dispute to be as follows:

On October 25, 1947, defendant issued an automobile public liability insurance contract to Joseph Ingolia, providing, among other coverages, bodily injury and property damage insurance with a maximum limit of $40,000. By the terms of the policy Ingolia was insured while operating a 1930 Ford automobile, which he then owned. However, the policy included the following terms:

'VII. Temporary Use of Substitute Automobile.

'While an automobile owned in full or in part by the named insured is withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction, such insurance as is afforded by this policy for bodily injury liability, for property damage liability and for medical payments with respect to such automobile applies with respect to another automobile not so owned [meaning 'owned in whole or in part by the insured'] while temporarily used as the substitute for such automobile. The insuring agreement does not cover as an insured the owner of the substitute automobile or any employee of such owner.' (Emphasis and bracketed insert supplied.)

and

'IX. Automatic Insurance for Newly Acquired Automobiles.

'If the named insured who is the owner of the automobile acquires ownership of another automobile and so notifies the company within thirty days following the date of its delivery to him, such insurance as is afforded by this policy applies also to such other automobile as of such delivery date:

'(a) if it replaces an automobile described in this policy, but only to the extent the insurance is applicable to the replaced automobile * * *.'

On June 13, 1948, Ingolia, while driving a 1937 Chevrolet, collided with an automobile being driven by one Theresa Midden. As a result of that collision Ingolia and Theresa Midden died; John B. Midden and Gertrude Ann Midden suffered bodily injuries. Thereafter, on June 7, 1949, John Midden, individually and as administrator of the estate of Theresa Midden and Gertrude Ann Midden, instituted an action in the Circuit Court of Bureau County, Illinois, against Mary J. Ingolia, administrator of the estate of Joseph Ingolia, deceased, for wrongful death and personal injuries. Judgments for all the plaintiffs were entered in that action on July 31, 1950. Grounds for reversal predicated upon the proceedings in the Circuit Court of Bureau County, the nature of the judgments entered and their subsequent amendment are advanced by defendant but need not be discussed in view of the conclusion we reach upon the basic issue of the ownership of the automobile being driven by Mr. Ingolia at the time of the collision in question.

Plaintiffs' theory of recovery was and is that the 1937 Studebaker was automatically covered under the above quoted section IX of defendant's policy because Ingolia had owned it less than the 30-day grace period for notice. With this proposition we agree. Next plaintiffs assert that the Studebaker was withdrawn from normal use within the meaning of section XII of the policy by reason of brake failure. There is substantial evidence to support that assertion. Finally, plaintiffs urge that Ingolia was using the 1937 Chevrolet as a substitute for the disabled Studebaker at the time of the subject collision within the terms of section VII, that the Chevrolet was owned by Mrs. Ingolia, and that, accordingly, his operation of the Chevrolet was a covered risk. With this we cannot agree for it is abundantly clear from the competent evidence in the record that the Chevrolet was owned in full or in part by Ingolia and was, therefore, under the express terms of section XII disqualified as a substitute automobile.

The evidence showed that in April, 1948, and more than 30 days prior to the collision which gave rise to this controversy, Ingolia purchased the 1937 Chevrolet which he was driving at the time of the collision; that he took an assignment in his own name of the certificate of title of the seller; that thereupon, on April 29, 1948, he executed a promissory note in the amount of $175 payable to Peoria Finance & Thrift Company, which note was secured by a chattel mortgage upon the Chevrolet; that the chattel mortgage was executed by him and contained a warranty that he owned the 1937 Chevrolet; that thereafter on June 1, 1948, he applied to the Illinois Secretary of State for issuance of a new certificate of title to the Chevrolet to be registered in his name but delivered to the Peoria Finance & Thrift Company; Ingolia stated in the title application, under oath, that he was the sole owner of the 1937 Chevrolet; that a certificate of title was issued to him in his name; that the license plates attached to the Chevrolet at the time of the collision were registered in Ingolia's name. There was no proof that Ingolia had notified defendant of his acquisition of the 1937 Chevrolet.

The evidence further disclosed that Ingolia's widow did not know how to drive and had no driver's license.

Ingolia's widow testified on behalf of plaintiffs that Ingolia had purchased the Chevrolet in April, 1948 with funds withdrawn from their joint bank account which had been funded with the proceeds realized from their sale of real estate owned in joint tenancy; that half of the money was hers and half was his; that Ingolia had purchased the car for the witness and their twenty-two year old daughter and had given the car to them; that it was the witness' car to use; that after its acquisition Ingolia continued to own and operate the 1930 Ford which was expressly covered by defendant's policy; that on June 3, 1948, and within 30 days of the subject collision Ingolia traded in the 1930 Ford and acquired a 1937 Studebaker; that about June 7th or 8th, 1948, the brakes on the Studebaker failed; that while the Studebaker was withdrawn from service Ingolia used the 1937 Chevrolet and during such use was involved in the subject collision. Plaintiff did not call the daughter as a witness. The record is silent on the question whether she knew how to drive an automobile or had a driver's license.

On two occasions immediately following the collision Mrs. Ingolia stated to defendant's investigators in the presence of a reporter who took and transcribed the questions put to Mrs. Ingolia, and her answers, that Ingolia owned the 1937 Chevrolet. On cross-examination the questions put to her by the investigators and her answers were read to Mrs. Ingolia. She did not deny any of the questions or her answers as read. She admitted outright that she had made certain of the answers as read, she equivocated as to others by stating that she had not made the answers 'in those words', and as to others she responded she 'may have' so answered or that she 'did not remember', or that she 'couldn't say', or that she 'could have' so answered.

Kevin D. Kelly, an attorney and investigator for defendant, testified without contradiction that the court reporter who accompanied him at the time he interviewed Mrs. Ingolia had died. He refreshed his recollection from the reporter's transcript and thereupon testified verbatim to the questions he put to Mrs. Ingolia and her responses, each of which had theretofore been read to Mrs. Ingolia. Robert L. McConnell, another investigator, similarly testified without contradiction to a subsequent interview of his with Mrs. Ingolia. It appeared that the court reporter who accompanied him at the interview was not produced as a witness because she was then actually engaged as official court reporter in a cause then on trial in the United States District Court in Peoria.

It also appeared from the evidence that Ingolia, as a side line to supplement his income, purchased used cars from time to time, repaired and overhauled them, and resold them.

Mrs. Ingolia's testimony that Mr. Ingolia had purchased the 1937 Chevrolet for her and her daughter and had given...

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6 cases
  • Fopay v. Noveroske
    • United States
    • United States Appellate Court of Illinois
    • August 14, 1975
    ...challenge to the special interrogatories to preserve the issue for review. A contrary result was reached in Midden v. Allstate Ins. Co., 7 Ill.App.2d 499, 129 N.E.2d 779 (1955). In light of these two apparently conflicting appellate court decisions, this court chooses to apply the rationale......
  • Bowman v. Illinois Cent. R. Co.
    • United States
    • United States Appellate Court of Illinois
    • March 5, 1956
    ...to the interrogatory disregards and ignores the manifest weight of the evidence. Under the decision in Midden v. Allstate Ins. Co., 7 Ill.App.2d 499, at page 508, 129 N.E.2d 779, this is Plaintiff next contends that the Appellate court cannot weigh the evidence in actions under the Federal ......
  • Biggerstaff v. New York, C. & St. L.R. Co.
    • United States
    • United States Appellate Court of Illinois
    • February 19, 1957
    ...rule announced in the above cases. In both Bowman v. Illinois Cent. R. Co., 9 Ill.App.2d 182, 132 N.E.2d 558, and Midden v. Allstate Ins. Co., 7 Ill.App.2d 499, 129 N.E.2d 779, relied on by plaintiff, the motion for new trial did specifically set up that the answer to the interrogatory ther......
  • Munson v. Speck
    • United States
    • South Dakota Supreme Court
    • June 11, 1957
    ...See Utilities Ins. Co. v. Wilson, 207 Okl. 574, 251 P.2d 175; Erickson v. Genisot, 322 Mich. 303, 33 N.W.2d 803; Midden v. Allstate Ins. Co., 7 Ill.App.2d 499, 129 N.E.2d 779; Fleckenstein v. Citizens' Mutual Automobile Ins. Co., 326 Mich. 591, 40 [76 S.D. 603] N.W.2d 733; Iowa Mutual Ins. ......
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