Simmon v. Iowa Mut. Cas. Co.
| Decision Date | 24 May 1954 |
| Docket Number | No. 32916,32916 |
| Citation | 121 N.E.2d 509,3 Ill.2d 318 |
| Parties | SIMMON v. IOWA MUT. CAS. CO. |
| Court | Illinois Supreme Court |
Eagle & Eagle, Rock Island, for appellant.
Sollo, Graham & Califf, Moline (Robert G. Graham, Moline, of counsel), for appellee.
We have granted the petition for leave to appeal from the Second District Appellate Court. The decision of that court reversed the judgment of the circuit court of Rock Island County which had found the issues in favor of the appellant and plaintiff. Appellant will hereafter be referred to as plaintiff and appellee as defendant.
The uncontroverted facts in this case disclose that on June 30, 1948, plaintiff, Rosa Simmon, received personal injuries as a result of being struck by an automobile driven by one James Burke. In broad daylight Burke propelled the automobile off of a highway and struck plaintiff, who had been standing alongside the highway. Upon being arrested and jailed for the incident he later entered a plea of guilty to drunken driving. The automobile involved was owned by Burke's wife, who carried a liability policy covering its operation with the defemdant, Iowa Mutual Casualty Company. Plaintiff was hospitalized for a week, was then confined to her bed for another week, and was not able to get around very well for the next two weeks. On August 7, 1948, plaintiff's attorney wrote to an agent of defendant advising him that he had written insurance on the car which struck plaintiff and of the date of the accident. The letter advised the name and address of the driver, that plaintiff received serious personal injuries and that said driver was under the influence of intoxicating liquor.
The following day defendant's agent replied by a telephone response to plaintiff's attorneys and asked for further information concerning the accident. The desired information was given and the agent stated that the matter would be turned over to the defendant's adjusters. On the following August 24, plaintiff's attorneys wrote to the adjusters advising of their intention to file suit by September 1 unless a reasonable settlement was made. It was there stated that the case was a clear one which should be settled and an offer was made to make available names of all witnesses in their files. This letter also offered to have plaintiff give a statement of the facts prior to filing suit. Suit was filed September 1, 1948.
Between the time of the accident and the date of filing suit the assured made two premium payments on her policy but failed to give notice to defendant of the accident. After summons was served upon James Burke, the Burkes retained their own attorney, who, on September 9, 1948, by letter, requested defendant to defend the action and offered to co-operation of himself and his clients. Copies of the complaint and summons were enclosed with the letter. The defendant failed to assume the defense of the case and Burke did not defend. The trial court heard the evidence of plaintiff on October 11, 1948, and entered judgment in her favor against James Burke in the amount of $7000.
Execution on the judgment was returned showing James Burke to be without property and thereupon plaintiff instituted her action against the defendant under the provisions of section 388 of the Insurance Code permitting direct action by an injured person against the insurance company. Defendant relied upon the terms of its policy requiring its assured to give written notice of the accident. The policy conditions require this notice to be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable. Such notice was to contain particulars sufficient to identify the insured and also reasonable obtainable information concerning the accident, names and addresses of injured persons and available witnesses. The policy also provides that no action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of the policy. As against this defense, plaintiff contended that reasonable notice had been given to the defendant and that further, under any circumstances, defendant was absolutely liable to her up to $5000 by virtue of the provisions of the Illinois Financial Responsibility Act.
The issues were presented to the trial court, sitting without a jury, and the trial judge found from the evidence that defendant had been given reasonable notice and thereupon entered judgment in favor of plaintiff for $7000. In reversing the trial court's judgment the Appellate Court held that plaintiff's suit was barred by reason of the insured's failure to give reasonable notice to defendant 350 Ill.App. 1, 111 N.E.2d 374. Plaintiff now assigns error in that the Appellate Court refused to recognize notice given defendant by the injured party and refused to concern itself with plaintiff's contention of defendant's absolute liability up to $5000 by virtue of the Illinois Financial Responsibility Act.
Both parties agree that a notice to the company is required. They disagree as to the party entitled to give the notice. It cannot be seriously contended, under the circumstances of this particular case, that the notice was not given within a reasonable time. The trial court heard the evidence and this court is without power to set aside his factual finding where it is not against the manifest weight of the evidence. In Higgins v. Midland Casualty Co., 281 Ill. 431, at page 440, 118 N.E. 11, at page 14, (where more than one year elapsed before notice was given,) we declared, 'We think it was a question...
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...Country Mut. Ins. Co. v. Livorsi Marine, Inc., 222 Ill.2d 303, 305 Ill.Dec. 533, 856 N.E.2d 338, 346 (2006); Simmon v. Iowa Mut. Cas. Co., 3 Ill.2d 318, 121 N.E.2d 509 (1954). If prejudice is only a factor that may be considered in Illinois, then a showing of prejudice is not necessary. See......
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...reasonable notice has been given, but it does not dispense with the requirement of giving notice. Simmon v. Iowa Mutual Casualty Co. (1954), 3 Ill.2d 318, 322, 121 N.E.2d 509, 511; see also Annot., Modern Status of Rules Requiring Liability Insurer to Show Prejudice to Escape Liability Beca......
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...to give reasonable notice will defeat the right of the insured party to recover under the policy. Simmon v. Iowa Mutual Casualty Co., 3 Ill.2d 318, 322-23, 121 N.E.2d 509 (1954). In Simmon, this court discussed the role of prejudice in the reasonableness analysis. The plaintiff in Simmon ha......