Kostecki v. Zaffina
| Decision Date | 11 November 1943 |
| Docket Number | No. 27131.,27131. |
| Citation | 51 N.E.2d 152,384 Ill. 192 |
| Parties | KOSTECKI et al. v. ZAFFINA. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Action by Victoria Kostecki, as administratrix of the estate of Elizabeth Niles, deceased, and Mildred Keene, as administratrix of the estate of Loretta E. Kostecki, deceased, against Giuseppe Zaffina, as administrator de bonis non of the estate of Wilbur Soden, deceased, for wrongful death of plaintiffs' intestates, arising out of an automobile accident, wherein judgments in favor of the plaintiffs were entered. The plaintiffs, after entry of the judgments, sued out a garnishment writ against Utilities Insurance Company, as garnishee, relying upon an automobile liability policy which had been issued by that company to defendant's intestate. From a judgment of the Appellate Court, 316 Ill.App. 509, 45 N.E.2d 562, reversing the judgment of the circuit court and discharging the garnishee, the plaintiffs appeal.
Appellate Court reversed and circuit court affirmed.Appeal from Third Division, Appellate Court, First District, on Appeal from Circuit Court, Cook County; Harry M. Fisher, Judge.
Augustine J. Bowe, William J. Bowe, and John D. Casey, all of Chicago, for appellants.
Schuyler & Hennessy, of Chicago (Allan T. Gilbert and Jay Stough, both of Chicago, of counsel), for appellee.
The appellants, Victoria Kostecki as administratrix, and Mildred Keene as administratrix, recovered judgments for $10,000 and $7,500 respectively against Giuseppe Zaffina as administrator de bonis non of the estate of Wilbur Soden, deceased. These judgments were entered in an action for damages on account of the wrongful death of plaintiffs' intestates arising out of an automobile accident occurring on July 4, 1938, wherein the decedents were passengers in an automobile owned and being then driven by Soden. After the entry of the judgments, the appellants sued out a garnishment writ against the appellee insurance company as garnishee relying upon an automobile liability insurance policy which had been issued by that company on April 15, 1938, to Soden. The garnishment proceeding was tried before the court without a jury and resulted in judgments against the garnishee for $5,000 in favor of each plaintiff. The garnishee appealed to the Appellate Court, First District, and that court by its opinion reversed the judgment of the circuit court of Cook county and discharged the garnishee. Leave to appeal was granted by this court. It is the contention of the appellants that the garnishee had issued a policy of liability insurance covering Soden and the automobile which he owned and was driving at the time of the accident. The garnishee admits that it had issued to Soden the liability insurance policy on April 15, 1938, but denies that this policy covered Soden and the particular car that he was driving at the time of the accident. It is therefore necessary to recite the facts regarding the issuance of the policy.
The evidence shows that in 1935 Soden purchased a 1935 Plymouth two-door sedan, engine No. PJ-121860, serial No. 2481012. In 1935 the garnishee issued a policy of automobile liability insurance to Soden covering Soden and this automobile from April 29, 1935, to April 29, 1936. In 1936 the second policy was issued for the period from April 29, 1936, to April 29, 1937. This policy, however, described said automobile as a 1936 model. On October 19, 1936, Soden purchased a new car, it being a 1937 Plymouth four-door sedan, engine No. P4-38159 and serial No. 10115840. There was some conflict as to when Soden disposed of his 1935 Plymouth, but the Appellate Court has found that the evidence shows that at the time the new car was purchased the old car was taken in trade by the dealer. A third policy was issued for the period from April 29, 1937, to April 29, 1938, but in said policy the description of the automobile was the same as the description in the policy issued the previous year in spite of the fact that Soden had disposed of that automobile. On April 15, 1938, another policy was issued for the period from Arpil 29, 1938, to April 29, 1939. It is on this policy that the plaintiffs' claim is based. It is undisputed that when the first policy was issued it covered Soden and a 1935 model Plymouth and the automobile was correctly described therein. The policy issued for the year beginning April 29, 1938, contained the same description of the automobile as had been contained in the policies of the two preceding years.
The first page of the policy contains the declarations and recites seven ‘items' including the name and address of the insured, his occupation, the policy period, the coverages, limits of liability and premiums, the purposes for which the automobile is to be used, a statement as to ownership of the automobile, and a statement as to any automobile insurance issued to the named insured cancelled by any other insurer during the past year. One of the ‘items' also provides for the description of the automobile.
Page two of the policy contains the insuring agreements and page three of the policy contains the conditions thereof. The insuring agreements contain the following provision: ‘To pay on behalf of the insured all sums which the insured becomes obligated to pay by reason of the liability imposed upon him by law for damages * * * sustained by any person or persons, caused by accident and arising out of the ownership, maintenance, or use of the automobile.’
Among the conditions of said policy appears the following statement,
Soden purchased this policy through an insurance broker. It is admitted by the plaintiffs that in sending the policies, the broker wrote Soden asking him if the policies were in order and requesting information should there be any changes desired.
It appears that Soden owned only one automobile during the entire time that this policy was in force, namely the 1937 Plymouth four-door sedan, engine No. P4-38159 and serial No. 10115840, and it appears that he was driving this automobile at the time of the accident. It is established by the evidence that the year model of the car is of no importance in determining the rate charged for the policy, and it is also established that the premium rate was the same as if the number of Soden's car had been correctly stated in the policy.
The appellate Court in its decision held that the policy did not insure Soden in the operation of any automobile. Appellee contends that it is not liable because, for the following reasons, its policy did not cover the automobile which caused the deaths: (1) The insured having accepted the policy was bound by its terms; (2) the automobile described was not the one involved in the accident; and (3) the improper description of the motor vehicle was not merely an error in the description, but was an indication of an intent by the insurance company to insure an automobile other than the one involved in the accident.
The appellee also contends that the question involved is one of fact and not subject to review by this court. The appellants contend that the Appellate Court erred, as a matter of law, in holding that the incorrect motor and serial number in the declaration avoided the policy.
At the trial practically all of the evidence admitted was undisputed. The case presents to this court a question of law, namely, does an error or a misstatement of motor number, serial numbers and year of model contained in the...
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