Donlon v. American Motorists Ins. Co.
| Decision Date | 04 February 1941 |
| Docket Number | No. 25573.,25573. |
| Citation | 147 S.W.2d 176 |
| Parties | DONLON v. AMERICAN MOTORISTS INS. CO. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Eugene L. Padberg, Judge.
"Not to be reported in State Reports."
Garnishment proceeding by Nora Donlon against the American Motorists Insurance Company, garnishee of Jerry Flynn and another, wherein plaintiff sought to hold garnishee liable under an automobile indemnity insurance policy issued by it. From an adverse judgment, the garnishee appeals.
Reversed.
Bishop, Claiborne & Heneghan, of St. Louis, for appellant.
Dubinsky & Duggan, of St. Louis, for respondent.
This proceeding was instituted during the June term, 1937, of the Circuit Court of the City of St. Louis (following a judgment entered in plaintiff's favor and against Jerry Flynn and Leonard Flynn during the April term, 1937, of said Court), by the respondent causing to be issued garnishment on execution, and summoning appellant, American Motorists Insurance Company to appear before said Court to answer such allegations and interrogatories as may be exhibited by Nora Donlon, the plaintiff in said action against Jerry Flynn and Leonard Flynn. The pleadings are not in dispute; sufficient to say that plaintiff seeks to hold garnishee liable under an automobile indemnity insurance policy it issued on June 5, 1936, to Leonard Flynn, effective from June 5, 1936, to June 5, 1937, and providing, among other things, a bodily injury liability limit of $5,000 for each person, and subject to that limit for each person, a $10,000 bodily injury liability for each accident, and containing the following clauses, under the caption of "Insurance Agreements":
And under the caption of "Conditions" the following clauses:
The facts, of which there is no material dispute, are as follows: On June 28, 1936, plaintiff was riding in an automobile being operated by Jerry Flynn, with whom she was keeping company, and was injured when said automobile left the highway and overturned while rounding a curve on a public highway in the State of Illinois.
The accident was reported to garnishee within a few days after its happening. Investigation of the accident was made by garnishee under the direction of Mr. Frank S. Mulholland, claim manager of the Insurance Company. No notice was ever received from Nora Donlon, nor from anybody representing her, that she was making any claim, but she was interviewed by someone from the office of garnishee shortly after the accident.
There is in Illinois a statute, Smith-Hurd Revised Statutes of Illinois, Chapter 95½, Section 58a, providing as follows:
The undisputed testimony is that the first notice that garnishee had that a claim was made or a suit filed by Nora Donlon was in August, 1937, when papers were received by garnishee at its home office in Chicago from the office of the Insurance Commissioner in Jefferson City, Missouri. Investigation then disclosed that a suit had been instituted on November 21, 1936, by Nora Donlon against Jerry Flynn and Leonard Flynn, returnable to the December term, 1936, and that on February 6, 1937, during the February term of the Circuit Court of the City of St. Louis, Missouri, a default and inquiry were granted, and that on May 6, 1937, during the April term, 1937, of said Court, a default judgment was had against Jerry Flynn and Leonard Flynn, but no garnishment was run until August, 1937, during the June term, 1937, of the said Court, and after the term had expired at which the judgment against Leonard Flynn and Jerry Flynn had been obtained.
Mr. Mulholland testified that in August, 1937, following notice of garnishment received from the Commissioner of Insurance, he immediately went to the home of Leonard Flynn and Jerry Flynn to learn whether or not they had been given any notice that a suit had been filed or whether any suit papers had been received by them, and after they had first stated they had received no notice, they then stated they had received suit papers but they had been unable to find them; that while he was questioning Leonard and Jerry Flynn their mother came in with the papers and said, "Here are the two papers here."
The cause was tried before a jury, resulting in a finding that garnishee was indebted to Leonard Flynn in the sum of $5,748.75; an order of court was made ordering garnishee to pay said sum into the registry of the court within ten days, which garnishee failed to do; thereafter, judgment was entered in favor of Nora Donlon and against garnishee for said sum of $5,748.75.
The suit of Nora Donlon against Leonard Flynn and Jerry Flynn...
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