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Roon v. Van Schouwen

OPINION FILED SEPTEMBER 21, 1950.

NANNING ROON, APPELLEE,

v.

JOSEPH VAN SCHOUWEN, SR., ET AL. — (ILLINOIS AGRICULTURAL MUTUAL INSURANCE COMPANY, APPELLANT.)



APPEAL from the Second Division of the Appellate Court for the First District; — heard in that court on appeal from the Superior Court of Cook County; the Hon. JOSEPH A. GRABER, Judge, presiding.

MR. CHIEF JUSTICE SIMPSON DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 17, 1950.

This case is here pursuant to leave to appeal granted to review the judgment of the Appellate Court for the First District.

November 18, 1947, plaintiff, Nanning Roon, secured a judgment in the superior court of Cook County for $8000 against Joseph Van Schouwen, Sr., as damages resulting from an injury alleged to have occurred on April 9, 1945. Thereafter on June 25, 1948, garnishment proceedings were commenced in said court against Country Mutual Casualty Company, formerly Illinois Agricultural Mutual Insurance Company, appellant here, asserting that it was indebted to the defendant, Joseph Van Schouwen, Sr., in the amount of $8000. The answer of the garnishee denied any indebtedness to the principal defendant and asserted that a policy of insurance which had previously been issued by the garnishee to the defendant in the original suit had been cancelled on April 1, 1945, and that between that date and April 23, 1945, when said policy was reinstated, the garnishee did not have in effect any policy of insurance covering said defendant.

The injury for which the original judgment was entered occurred on April 9, 1945, nine days after the date the garnishee alleged that the policy of insurance had been cancelled. After a hearing on the merits the trial court allowed garnishee's motion for a directed verdict and judgment was accordingly entered against the plaintiff. On appeal, the Appellate Court, by divided opinion, (Roon v. Van Schouwen, 339 Ill. App. 173,) found that the policy of insurance had not been cancelled, and entered an order reversing and remanding the cause with directions to the trial court to enter judgment for the amount found to be due. It is this judgment which the garnishee seeks to have reviewed.

The question presented is whether the Appellate Court erred in setting aside the judgment entered for the garnishee on its motion for a directed verdict in the trial court. The determination of whether there is any evidence in the record to support the findings of the Appellate Court is a question of law which may be inquired into by this court. (Ahlenius v. Bunn & Humphreys, Inc., 358 Ill. 155.) In such case, this court may not weigh the evidence, but will review it to determine whether there was any evidence, taken most favorably with all its reasonable intendments, to support the plaintiff's claim. Goodrich v. Sprague, 376 Ill. 80.

The plaintiff's claim is that the garnishee was indebted to the principal defendant in the amount of $8000. The garnishee in its answer denied any indebtedness owing to such defendant, and specifically pleaded the cancellation of the insurance policy which had been previously issued to the defendant. Where the garnishee denies under oath any liability to the principal defendant it is incumbent upon the plaintiff to prove the contrary. (Payne v. Chicago, Rock Island and Pacific Railway Co. 170 Ill. 607.) When the garnishee denies liability, one of the objects of the suit is to ascertain whether there is a debt due from the garnishee to the judgment debtor. (Zimek v. Illinois National Casualty Co. 370 Ill. 572.) If the record fails to show any evidence that the garnishee was indebted to the defendant, Joseph Van Schouwen, Sr., the action of the trial court directing a verdict in favor of the garnishee was proper and should have been affirmed by the Appellate Court.

Reviewing the facts, we note that on July 29, 1944, the garnishee issued its policy to the defendant insuring each person employed against bodily injury, up to the amount of $5000. The policy provided that it might be cancelled by the company by giving at least five days' notice, in writing, of such cancellation mailed to the insured at the address stated in the policy, and that the payment or tender of unearned premium was not a condition precedent to cancellation of the policy. In compliance with the provisions of the policy, the garnishee, on March 1, 1945, mailed a notice on its regular form, addressed to the defendant at his business address in Lansing, Illinois. This notice acknowledged the receipt of estimated advance premiums due to renew the policy, called attention to the failure of the insured to furnish information as to the amount of labor employed by the insured during the preceding six months, as required by the policy, enclosed a form for the furnishing of such information, and concluded with notice that the policy would be cancelled on March 16, 1945, unless a report of the amount of labor employed was furnished. Thereafter the policy card maintained at the home office of garnishee was marked "Cancel, 4/1/45." This notation of cancellation of the policy was placed on the records of the company by the secretary of the manager of the garnishee, at his direction.

On April 6, 1945, a letter was directed to the original defendant, at the same address as the previous letter, advising him that pursuant to the letter of March 1, 1945, the policy was cancelled as of April 1, 1945. A check for an unearned premium of $34 was enclosed in this letter. April 16, 1945, a letter was directed to the garnishee upon the letterhead of said defendant in which cancellation of the policy was acknowledged. April 23, 1945, the policy was reinstated upon an application bearing the signature of the defendant. The $34-check was returned to the company and although not endorsed by Van Schouwen, the proceeds thereof were applied upon the premium for the reinstated policy. The defendant, Joseph Van Schouwen, Sr., denied that he had received either the notice of cancellation or the letter advising that such cancellation had been effectuated on the records of the company. He also denied any knowledge of the letter of April 16, 1945, on his stationery but admitted that the letter could have been written by his daughter who was in charge of correspondence and testified that he vouches for and stands back of what she says and does. The daughter did not appear as a witness.

From the facts and circumstances in evidence it appears that notice of cancellation was given to the insured in the manner provided in the policy. Thereafter the cancellation was effectuated on the records of the company in the usual course of business, by a notation to that effect on the company records, followed by the return of the unearned premium. No evidence was offered on the part of the plaintiff to controvert these facts. The mere assertion of the principal defendant that he had no personal knowledge of any of these communications from the garnishee does not controvert the fact that the notice of cancellation was given as required by the policy, or that the same was effectuated in the manner testified to by the officers of the company. There was no evidence to support plaintiff's claim that the garnishee insurance company was indebted in any sum to the principal defendant, Joseph Van Schouwen, Sr.

The Appellate Court and the plaintiff rely principally upon Fisher v. Associated Underwriters, Inc. 294 Ill. App. 315, as authority in favor of the plaintiff. That case is readily distinguishable from the one before us and the distinction is clearly shown in the dissenting opinion of Mr. Justice Niemeyer, in the present case, reported in 339 Ill. App. 173. Other points raised have been considered but need not be discussed.

The judgment of the Appellate Court for the First District is reversed and the judgment of the superior court of Cook County is affirmed.

Appellate Court reversed; superior ...


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