Soukup v. Halmel
| Decision Date | 17 October 1934 |
| Docket Number | No. 22363.,22363. |
| Citation | 357 Ill. 576,192 N.E. 557 |
| Parties | SOUKUP v. HALMEL et al. (MOTOR VEHICLE CASUALTY CO., Garnishee). |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to First Branch Appellate Court, First District, on Appeal from Superior Court, Cook County; Walter T. Stanton, Judge.
Action by Bohumil Soukup against Anton Halmel and another, and the Motor Vehicle Casualty Company, garnishee. Judgment discharging the garnishee was affirmed by the Appellate Court (272 Ill. App. 336), and defendant Anton Halmel, for the use of plaintiff, brings certiorari.
Affirmed.
Emmet F. Byrne, of Chicago (Roy S. Gaskill and William L. Kelley, both of Chicago, of counsel), for plaintiff in error.
Eckert & Peterson, of Chicago (A. R. Peterson and Owen Rall, both of Chicago, of counsel), for defendant in error.
Bohumil Soukup instituted a suit in the superior court of Cook county against Anton Halmel and James Halmel to recover damages for personal injuries sustained when struck by an automobile belonging to James Halmel and driven by Anton Halmel, his sixteen yearold son. The court directed a verdict in favor of James Halmel. A verdict for $5,000 was returned against Anton Halmel, and judgment was entered thereon. The Motor Vehicle Casualty Company (successor to the Motor Vehicle Underwriters), insurer under a policy issued to James Halmel covering public liability on account of the use or operation of the automobile, was served as garnishee. Its answer denied liability, for the reason that at the time Soukup was injured Anton Halmel was using and operating the automobile without the permission or consent of his father, the owner, or any adult member of his household, and that the Halmels failed to report the accident to the insurer, as required by the policy. Upon a hearing by the court without a jury, judgment was entered discharging the garnishee. Soukup prosecuted an appeal to the Appellate Court for the First District, and the judgment was affirmed. The cause comes to this court by certiorari on petition of Anton Halmel, for use of Soukup. Soukup will be referred to as plaintiff and the garnishee as defendant.
The policy provides that in the same manner and under the same conditions, but only to the same extent as available to the named assured, the insurance ‘shall inure to the benefit of any person or persons while riding in or lawfully operating any of the automobiles described in the schedule of this policy, and to any person, firm or corporation legally responsible for the operation thereof, provided such use or operation is with the permission of the named assured, or, if the named assured is an individual,with the permission of an adult member of the assured's household other than a chauffeur or a domestic servant.’
The automobile which struck plaintiff was a Ford coupé. James Halmel, the assured, used two trucks and two automobiles in his business. They were kept in a garage at his home. His son, Anton, lived at home and assisted his father in the business as a helper on one of the trucks, but did not receive any salary. He took the Ford coupé from the driveway alongside the house on the evening of the accident. His father testified that Anton was through working; that he got off the truck, and, instead of going to supper, as he was supposed to do, ‘he goes away and takes the car and beats it’ without asking permission; that the keys were in the car, which was kept in the garage at night with the garage doors locked; that the whole family had access to the garage keys; that once in a while when the other boy was busy or Halmel himself could not go out Anton would deliver a specific order in the coupé; that he was allowed to take it only with permission; that the car was kept for pleasure, except in case of a special call Anton would deliver a package of butter or eggs; and that he had driven the car about six months. The father also testified that he always...
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