Firebaugh v. Jumes
| Decision Date | 11 May 1950 |
| Docket Number | Gen. No. 44982 |
| Citation | 92 N.E.2d 790,341 Ill.App. 1 |
| Parties | FIREBAUGH v. JUMES. JUMES, for Use of FIREBAUGH v. EMPLOYERS MUT. LIABILITY INS. CO. OF WISCONSIN. |
| Court | United States Appellate Court of Illinois |
Rosen, Francis & Cleveland, Chicago (Sidney A. Wilson, John F. Rosen, Chicago, of counsel), for appellant.
Krohn & MacDonald, Chicago (Stuart B. Krohn and Ian P. MacDonald, Chicago, of counsel), for appellee.
Employers Mutual Liability Insurance Company of Wisconsin appeals from an order entered by the motion judge of the Circuit Court striking its additional answer as garnishee and entering an adverse judgment in the sum of $3000.
Russell Firebaugh, plaintiff in the primary suit, filed his complaint March 22, 1947 alleging in substance that on January 9, 1947 the original defendant, Nicholas P. Jumes, while operating his automobile, negligently backed into and struck and injured the plaintiff, Firebaugh. Trial by jury in the proceeding resulted in a verdict and judgment against Jumes for $3000 and costs. Thereafter Firebaugh filed a garnishment suit against the insurance company, the insurer. The garnishee filed a jury demand and answer, which it supplemented with an additional answer, and also answers to the written interrogatories propounded by plaintiff. The additional answer averred that the garnishee had an automobile liability insurance policy in force on the date of the accident covering Jumes, but denied that it had any property, rights or credits belonging to Jumes, and averred that the assured breached a condition of the policy because of his failure to notify the insurance company of the occurrence of the accident until 61 days thereafter, namely, on March 11, 1947. Plaintiff thereupon filed his motion to strike the additional answer on the ground that its allegations were not sufficient in law to discharge the garnishee. That motion was sustained by the motion judge, and judgment was entered against the garnishee, from which it appeals.
It appears from the additional answer of the garnishee that on January 9, 1947 Jumes had parked his automobile on the east side of Dearborn street, between Monroe and Adams streets, in Chicago; that he backed his car against Firebaugh, inflicting the injuries complained of in the original suit; that Firebaugh demanded and received from Jumes the name of the insurance company carrying liability insurance on his car; that they exchanged business cards containing the identifications and addresses of the respective parties; that Jumes retained possession of Firebaugh's card continuously from the date of the accident until March 11, 1947, on which date he first gave notice of the accident to the garnishee, which had no knowledge of the accident until then. It further appears that on March 14, 1947 the garnishee served notice of the usual reservation of rights upon the assured, and subsequently, under the provisions of such reservation of rights, its attorneys appeared and defended Jumes in the original suit; that after the entry of judgment the garnishee notified the assured that it elected not to make payment of the judgment because of the failure of Jumes to comply with the condition of the policy with respect to giving notice of the accident.
The duty of the assured with respect to notice is defined under 'Conditions' which appear in the policy, as follows: As further condition of the policy reads as follows: 'No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, nor until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company.'
The garnishee takes the position that Jumes, as a matter of law, breached the condition of the policy requiring notice of the accident to be given 'as soon as practicable'; that the judgment creditor, Firebaugh, had no greater rights against the insurance company than the named assured, Jumes; and that since Jumes could not recover against the garnishee, plaintiff could not do so. The motion judge held with the contention of plaintiff that once an accident occurs, the injured party acquires the right to recover under the policy, irrespective of any violation of a condition thereof by the named assured.
The following language, taken from Scott v. Freeport Motor Casualty Co., 392 Ill. 332, 64 N.E.2d 542, 549, is urged as the basis for that contention: ...
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