Zitnik v. Burik

• Decision Date: 20 November 1946
• Docket Number: No. 29429.,29429.
• Citation: 69 N.E.2d 888,395 Ill. 182
• Parties: ZITNIK v. BURIK et al.
• Court: Illinois Supreme Court

395 Ill. 182

69 N.E.2d 888

ZITNIK

v.BURIK et al.

No. 29429.

Supreme Court of Illinois.

Nov. 20, 1946.

Appeal from Third Division of Appellate Court, First District, on Appeal from Circuit Court, Cook County; Walter W. Wright, Judge.

Action by Marjorie Allen Zitnik, administratrix of the estate of William B. McInerney, deceased, against William Burik and Herbert Muthart to recover damages for the death of William B. McInerney in an automobile accident. William Burik was dismissed on plaintiff's motion. The plaintiff recovered a judgment against Herbert Muthart, and thereafter started garnishment proceeding against the United States Mutual Insurance Company. A judgment was entered against the garnishee, which appealed to the Appellate Court which reversed the judgment and remanded the cause with directions to discharge the garnishee, 327 Ill.App. 170, 63 N.E.2d 635, and leave to appeal was granted to the plaintiff.

Judgment of Appellate Court affirmed.

Cattell & Waldron and Alfred Roy Hulbert, all of Chicago, for appellant.

Barrett, Barrett, Costello & Barrett, of Chicago (Wendell H. Shanner, of Chicago, of counsel), for appellee.

MURPHY, Justice.

William Burik owned an automobile on which he carried public liability insurance with the United States Mutual Insurance Company. In June, 1942, while the policy was in force, Burik granted Herbert Muthart permission to drive his automobile from Burik's place of business to Muthart's home. While Muthart was driving the automobile, it struck William B. McInerney causing his death. Plaintiff, as administratrix of the McInerney estate, sued Burik and Muthart in the circuit court of Cook county to recover damages for wrongful death. Before the cause was submitted on the evidence, Burik was dismissed from the action on plaintiff's motion. The hearing proceeded against Muthart and resulted in a judgment against him for $5000. The judgment was not paid and after taking the preliminary steps necessary to the staring of a garnishment proceeding, plaintiff caused the insurance company (referred to herein as defendant,) to be summoned as a garnishee. The cause was submitted on defendant's answer to interrogatories and evidence. A judgment was entered against the insurance company for $5000. On appeal the Appellate Court reversed the judgment and remanded the cause with directions to discharge the garnishee. 327 Ill.App. 170, 63 N.E.2d 635. Leave to appeal was granted.

The policy defined the unqualified word ‘insured,’ as used in the various clauses of the policy, to include not only the named insured (Burik) but also any person using the automobile for ‘pleasure and business' or ‘commercial’ purposes, provided the actual use was with the permission of the named insured.

Burik testified that he gave Muthart permission to drive the automobile from his store to Muthart's home and keep it overnight, and return with it in the morning. This is not denied. There is an intimation that when he accident occurred Muthart might have been driving the car on a trip for which he did not have Burik's permission, but defendant makes not point of it, so the cause will be considered on the assumption that Muthart was driving within the scope of his permission when the accident occurred.

The insurance company concedes Muthart had coverage under the omnibus clause of the policy but contends that other policy provisions imposed a duty on him to co-operate with it in its investigation and defense of any claim that might be made and that he failed to perform such duty. Plaintiff says that Muthart did not know of the protection the policy afforded him and since defendant failed to give him such information, there was no duty resting upon Muthart to co-operate with defendant.

The pertinent parts of the policy provide that ‘Upon the occurrence of an accident written notice shall be given by or on behalf of the insured to the company * * * as soon as practicable.’ It further directs the notice shall contain facts sufficient to identify the insured and to give reasonable information as to the time, place and circumstances of the accident, the names and addresses of the insured and available witnesses. If claim was made or suit was started against the insured, he was required to forward to the insurer all demands, notices, summons or other process received by him or his representatives. The seventh provision was as follows: ‘The insured shall co-operate with the company and, upon the company's request, shall attend hearings and trials and shall assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of suits; and the company shall reimburse the insured for expenses, other than loss of earnings, incurred at the company's request.’ The eighth provision directed that no action should lie against the insurer unless, as a condition precedent thereto, the insured had fully complied with all the terms of the policy.

The accident occurred on the early morning of June 21, 1942, the action for wrongful death was filed July 11, Muthart was served with summons on July 13, and counsel of his own selection filed an appearance as his attorney of record on August 3. Defendant furnished Burik counsel to defend the action against him and such counsel remained as Burik's attorney of record until the cause was dismissed as to him on plaintiff's motion. Defendant was not requested and did not furnish counsel to Muthart.

It appears that immediately following the accident Muthart was placed under arrest and was confined to the county jail for a few days. At the time of the coroner's inquest, he was ordered held to await the action of the grand jury. There is uncertainty as to whether an indictment was returned against him but at any rate there is no evidence that he was tried on any criminal action. Muthart testified at the inquest and defendant had a transcript of his evidence. Muthart did not deliver to defendant the process served on him in the damage action. He gave no notice of the accident to defendant, neither did he furnish any information as to the persons injured or the names of witnesses. On July 16 following the accident, an investigator for defendant undertook to interview Muthart at his home. He refused to answer any questions propounded by the investigator and excused himself on the grounds that his attorney had told him ‘to keep his mouth shut.’ A few weeks after July 16, the investigator made an attempt to locate him but could not find him. The only information he had was that Muthart had moved out of the State.

If the provisions of the policy required Muthart's co-operation with the defendant and he failed to meet such requirement, then he could not recover on the policy unless defendant waived such default or did something by which it was estopped to interpose the default as a defense. If Muthart had no right of recovery on the policy, then plaintiff has none. Schneider v. Autoist Mutual Ins. Co., 346 Ill. 137, 178 N.E. 466.

The principles governing the interpretation and construction of insurance contracts do not differ from those controlling in other contracts. Capps v. National Union Fire Ins. Co., 318 Ill. 350, 149 N.E. 247;Cottingham v. National Mutual Church Ins. Co., 290 Ill. 26, 124 N.E. 822. They must be construed...