Johnston v. Otta

• Decision Date: 29 March 1950
• Docket Number: Gen. No. 10399
• Citation: 91 N.E.2d 468,340 Ill.App. 270
• Parties: JOHNSTON v. OTTA.
• Court: United States Appellate Court of Illinois

Page 468

91 N.E.2d 468

340 Ill.App. 270

JOHNSTON v. OTTA.

Gen. No. 10399.

Appellate Court of Illinois, Second District.

March 29, 1950.

Chrles G. Seidel, Elgin, Ernest W. Akemann, Elgin, for appellant.

Kramer & Kramer, Elgin, for appellee.

DOVE, Justice.

Robert R. Johnston filed his complaint seeking to recover from the defendant, E. I. Otta, an insurance broker, damages which he alleged he sustained as a result of the negligence of the defendant in failing to obtain insurance upon the automobile of the plaintiff.

The complaint charged that prior to November 4, 1947, the defendant solicited the plaintiff to act as plaintiff's agent in obtaining automobile insurance for him and that, as his agent, defendant obtained for the plaintiff a policy which expired on November 4, 1948, the premium for which plaintiff paid; that prior to November 4, 1948, defendant solicited the plaintiff to obtain for him the same type of insurance upon the expiration of the policy on November 4, 1948; that plaintiff authorized the defendant to obtain such insurance and on November 6, 1948, plaintiff paid to the defendant the sum of $30.50 for the premium of such insurance. The complaint then alleged that on February 20, 1949, the plaintiff was involved in an automobile accident with Robert E. Johns; that plaintiff reported that accident to the defendant who told the plaintiff to return the following day; that plaintiff did so and was informed by the defendant that he had not obtained any insurance for the plaintiff and the defendant offered to return to the plaintiff the premium which plaintiff had theretofore paid the defendant.

The complaint then charged that it became the duty of the defendant, as agent of the plaintiff, to be diligent in the procurement of such insurance and alleged that the defendant had breached that duty by failing to obtain such insurance within a reasonable time and as a direct result thereof plaintiff was compelled to engage his own attorney and settle the claim of the said Robert E. Johns. The defendant, by his answer, admitted many of the allegations of the complaint and admitted that it became his duty to use diligence in the procurement of the automobile insurance for the plaintiff but denied that he breached that duty and denied that he was negligent in failing to obtain such insurance and denied that the plaintiff had been damaged by any acts of negligence or misconduct on the part of the defendant. The issues made by the pleadings were submitted to the court for determination without a jury and resulted in a judgment in favor of the plaintiff and against the defendant for $265.50 and costs. To reverse this judgment defendant has perfected this appeal.

The evidence discloses that appellant is an insurance broker doing business as the E. I. Otta Insurance Agency in Elgin, Illinois; that on November 4, 1947, appellee applied to him for insurance upon his 1940 Mercury Tudor automobile and paid him the premium amounting to $59.50 and appellant procured for appellee a policy of insurance dated November 13th, 1947, and issued by the Progress Insurance Association, an Inter-Insurance Exchange of Chicago, effective November 4, 1947, and expiring on November 4, 1948. In March, 1948, this policy was delivered by appellant to appellee. The evidence is further that in November, 1948, appellant called appellee over the telephone and solicited him to permit him to renew the policy and appellee authorized its renewal and on November 6, 1948, appellee paid appellant for the renewal premium $30.50 leaving a balance, according to the receipt given appellee by appellant, of $10.00.

Appellant testified that in November 1947, he, as an insurance broker and acting for appellee, obtained this insurance policy covering the automobile of appellee which was issued by the Progress Insurance Exchange through the Robert P. Butts and Company general insurance agency; that on October 7, 1948, the Robert P. Butts and Company agency wrote appellant calling his attention to the fact that this policy expired on November 4, 1948, and advised him that the annual premium amounted to $30.50, that appellant's brokerage commission was 17 1/2% and concluded: 'Renewal policy will be sent to you immediately upon receipt of your request to issue same, together with net remittance of $25.16. We have appreciated your business and trust that we may continue to be of service to you.' Appellant testified that after he received this letter appellee came to his office and requested a renewal of the policy then about to expire and on November 6, 1948 appellee paid appellant the premium amounting to $30.50; that on November 2, 1948, appellant ordered a renewal of this policy through the Butts agency, sent them the premium and requested the issuance of the policy. On November 8, 1948, the Butts agency wrote appellant that the Progress Insurance Exchange would not renew the Johnston policy. Thereafter appellant inquired of the Butts agency whether they had endeavored to place appellee's insurance in another company, and on December 10, 1948, the Butts agency wrote appellant: 'We are sorry to advise we have no other facilities for handling this risk. May we suggest you submit this to the Assigned Risk?'

Appellant further testified that Fidelity Insurance Agencies, Inc. is a general agent for insurance companies and he made an effort to place this insurance with this agency but it was declined by that agency on December 15, 1948. In the latter part of January, 1949, appellant testified that he made another application for this insurance to the Ohio Casualty Company but that company also declined to issue a...