Latronica for Use of De Vries v. Royal Indem. Co.

• Decision Date: 09 January 1956
• Docket Number: Gen. No. 46652
• Citation: 132 N.E.2d 16,8 Ill.App.2d 337
• Parties: John LATRONICA for the USE of Adele Ruth DE VRIES, a Minor, and Joann P. Michener, a Minor, Appellant, v. ROYAL INDEMNITY COMPANY, Appellee.
• Court: United States Appellate Court of Illinois

Page 16

132 N.E.2d 16

8 Ill.App.2d 337

John LATRONICA for the USE of Adele Ruth DE VRIES, a Minor and Joann P. Michener, a Minor, Appellant, v. ROYAL INDEMNITY COMPANY, Appellee.

Gen. No. 46652.

Appellate Court of Illinois, First District, First Division.

Jan. 9, 1956.

Rehearing Denied Feb. 1, 1956.

Lawlor & Walsh, Chicago (James Maher and Dudley R. Sullivan, Chicago, of counsel), for appellant.

Hinshaw, Culbertson, Moelmann & Hoban, Chicago (Joseph W. Griffin, Chicago, of counsel), for appellee.

NIEMEYER, Judge.

Plaintiff appeals from a judgment for the defendant garnishee, the insurer of the nominal plaintiff, hereinafter sometimes referred to as the insured, in an automobile liability policy covering a 1942 Ford for the calendar year commencing May 19, 1942. On March 30, 1943 the beneficial plaintiffs, minors, were struck by a 1935 Ford driven by the insured. Suits on their behalf were brought and consolidated for trial. Judgments for $6,800 and $6,000 for the respective plaintiffs were entered against the insured. These judgments were not paid or satisfied and the instant garnishment suit was instituted. The insurer contends that its policy does not cover the 1935 Ford, and that the insured breached the provisions of the policy requiring co-operation with the insurer.

The insured acquired the 1935 automobile for $45 on March 19, 1943 and owned it on March 30, 1943, the date of the accident. The policy contained a standard provision for automatic insurance for newly acquired automobiles, the terms of which need not be stated because the parties agree that the policy did not apply to the 1935 Ford if insured owned the 1938 Ford when he acquired the 1935 automobile. The court found that the insured was the owner of the 1938 Ford from the date of its purchase and delivery to him on January 23, 1943 to the date he sold it, March 27, 1943.

Latronica, the insured, was the only witness testifying as to the ownership of the 1938 Ford. He was called as a witness for the beneficial plaintiffs and examined as to the ownership of the 1942 and 1935 Fords. On cross-examination by defendant he was examined as to the ownership and possession of a 1934 Ford and the 1938 Ford. He testified that he bought the 1934 Ford as a 'junker' in March 1943; the motor was burned out; he pulled it from the seller's home to his gas station; it was never repaired or operated; he bought it for the rubber--the tires; after transferring the tires he sold it to a junk dealer March 17, 1943 for $5 or $10; he gave the junk dealer the certificate of title he got when he bought it.

Latronica further testified that he did not buy a 1938 Ford; in January or February 1943 his son-in-law James Collachia bought the 1938 Ford involved herein in Gilman, Illinois; the car was brought to Chicago and kept in one of two garages at 9517 South Moody Street; the premises at that time consisted of a story-and-a-half home and two garages and were owned by Latronica's wife; Collachia lived in the upstairs flat; it was war time and, because under the regulations tires could not be transferred from one automobile to another unless both cars were owned by the same person, Latronica applied to the Secretary of State for registration of the title to the 1938 Ford in his own name; after the transfer of the tires to the 1938 car he transferred the car on March 27, 1943 to his son-in-law; he did not own the 1938 Ford when he applied for registration of title to it; he never operated it; his son-in-law did.

The original certificate of title for the 1938 Ford, received in evidence, shows title in Delmar E. Short of Gilman, Illinois, and assignment by him to James Collachia, 9517 South Moody Street, Oak Lawn, Illinois.

Latronica was further cross-examined as to two exhibits dated March 31, 1943, signed by him. A representative of the insurer who in 1943 had been in its employ for eleven years and was then assistant manager of the south and west side, investigator and adjuster, testified that he wrote the exhibits in Latronica's presence; that the phrasing of the exhibits was his--he composed them. Latronica testified that statements in the exhibits such as 'I bought the 1938 Ford * * * and had it ten days, about, and sold it to my son-in-law,' and 'I bought the 1938 Ford * * * because it was a bargain at $100 cash and the son-in-law could not swing it and I handled it for him,' were not true.

This resume of Latronica's testimony shows that he made statements out of court inconsistent with his testimony--in his unsworn statements to defendant and in his sworn application to the Secretary of State. He testified that these statements were not true. As the statements out of court are not evidence of the matters stated, People v. Scott, 296 Ill. 268, 274, 129 N.E. 798; Johnson v. N. K. Fairbank Co., 156 Ill.App. 381, there is nothing in the record to show that he testified falsely.

The statements of Latronica out of court are not admissions of fact binding on the beneficial plaintiffs. Generally, declarations of the nominal party are not admissible against the real party. 20 Am.Jur., Evidence, sec. 591. Neither privity of interest nor special circumstances bring the statements of Latronica within the exceptions to the rule. In Robinson & Co. v. Marr, 206 Ill.App. 12 (opini...