Pohlman v. Universal Mut. Cas. Co.

• Decision Date: 27 November 1956
• Docket Number: Gen. No. 46844
• Citation: Pohlman v. Universal Mut. Cas. Co., 12 Ill.App.2d 153, 138 N.E.2d 848 (Ill. App. 1956)
• Parties: Robert A. POHLMAN, Appellant, v. UNIVERSAL MUTUAL CASUALTY CO., Appellee.
• Court: Appellate Court of Illinois

Page 848

138 N.E.2d 848

12 Ill.App.2d 153

Robert A. POHLMAN, Appellant, v. UNIVERSAL MUTUAL CASUALTY CO., Appellee.

Gen. No. 46844.

Appellate Court of Illinois, First District, Second Division.

Nov. 27, 1956.

Seymour J. Kurtz, Chicago, for appellant.

Irvin Tischer and John Narusis, Jr., Chicago, for appellee.

McCORMICK, Judge.

This is an action brought by the plaintiff against the defendant, an insurance company, to recover for personal injuries allegedly received by the plaintiff through the negligence of one Langford, whose vehicle collided with the car of plaintiff in the state of Indiana. Langford had rented a trailer from Arnold Rasmussen, Don Rasmussen and Anton Rasmussen, doing business as Standard Trailer Service, which trailer was covered by a policy of insurance issued by the defendant under and in accord with the Illinois statutes. The defendant made a motion to strike the complaint filed by the plaintiff. The plaintiff was allowed to file an amended complaint instanter. The defendant stood on his motion to strike as the same applied to the amended complaint at law, which motion was sustained, the amended complaint was stricken and the cause was ordered to be dismissed. The plaintiff appealed from this order.

The only question before this court is as to whether the court acted properly in dismissing the complaint and cause of action against the defendant.

The complaint, in one count, alleges two causes of action, one in tort and one in contract. The tort action alleges that the negligence of Langford was the proximate cause of the injuries of plaintiff and the damages resulting therefrom. The contract action is based on the contract of insurance. The plaintiff seeks but one recovery, and the against the defendant insurance company. The liability for recovery against the tortfeasor is predicated upon his wrongdoing. The liability against the insurance company is predicated upon its contractual obligation. No question of joinder is here involved. The only question is as to whether or not the plaintiff can bring this ation against the defendant insurance company before there is any determination of the liability of the alleged tortfeasor, the insured.

To support his cause of action in contract the plaintiff sets out the fact that Langford had rented a trailer on April 28, 1953 from Standard Trailer Service, which was in the business of renting trailers to the general public; that under the statute the Standard Trailer Service was obligated to have either a motor vehicle liability policy or a motor vehicle liability bond; that at the time in question there was in full force between Standard Trailer Service and the defendant such an insurance policy. The policy was not attached to the complaint. The statute upon which the plaintiff relies is paragraph 63-1 of chapter 95 1/2 of Illinois Revised Statutes, 1951, which provides:

'It is unlawful for the owner of any motor vehicle to engage in the business, or to hold himself out to the public generally as being engaged in the business of renting out such motor vehicle, to be operated by the customer, unless the owner has given, and there is in full force and effect and on file with the Secretary of State either.

'(1) A motor vehicle liability policy in a solvent and responsible company, authorized to do business in the State of Illinois, providing that the insurance carrier will pay any judgment within thirty days after it becomes final, recovered against the customer or against any person operating the motor vehicle with the customer's express or implied consent * * * for an injury to, or for the death of any person * * *.'

Since the policy is not before us and the complaint alleges that the policy was in compliance with the statute, we must assume that the language in the statute was the language of the policy. No suit had been brought against Langford (the insured) and no judgment was entered against him. The terms of the policy would make the recovery of a judgment a condition precedent to an action against the insurance company. There is nothing in the statute which provides that the insurance company shall compensate the injured party.

In the complaint the plaintiff also sets out certain portions of the Financial Responsibility Law of Illinois, paragraph 58(k) (sec. 42-11) of chapter 95 1/2, Ill.Rev.Stat.1951. All provisions of the Financial Responsibility Law must be disregarded, because it was held in McCann for Use of Osterman v. Continental Cas. Co., 8 Ill.2d 476, 134 N.E.2d 302, affirming a decision of this court in McCann for Use of Osterman v. Continental Cas. Co., 6 Ill.App.2d 527, 128 N.E.2d 624, that the Illinois Financial Responsibility Law specifically limits the provisions of section 42-11 (par. 58(k)) to liability policies issued under the provisions of that Act, and that the provisions of the Act are not applicable unless the insured has by his previous conduct brought himself within its purview. There is nothing in the pleadings before us to indicate that such was the fact here.

The plaintiff relies upon the case of Illinois Casualty Co. v. Krol, 324 Ill.App. 478, 58 N.E.2d 473, 476, where the plaintiff insurance company had issued its policy under a compulsory statutory provision. A party was injured through the negligence of a minor driver operating one of the insured defendant's trucks without a chauffeur's license. The insurance company formally disclaimed liability to the insured under the policy on the ground that the provisions of the policy excluded coverage while the truck was being operated, as it was, by a person in violation of the law applicable to age or occupation of the driver. The insurance company, believing it was for the best interest of all parties to settle the claim, received an offer which it transmitted to the insured advising him that unless he settled it within a certain time limit, the company would make the settlement and seek reimbursement from him for any sums paid out by it. In this suit the insurance company sought to recover from the insured the amount paid to the injured party under the settlement agreement. The plaintiff insurance company, in order to sustain...