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Barr For Use of Senft v. Country Mutual Cas. Co.

OPINION FILED DECEMBER 5, 1951

JOHN BARR, FOR THE USE OF EDMUND SENFT, PLAINTIFF-APPELLEE, JOHN BARR, INTERVENOR-APPELLEE,

v.

COUNTRY MUTUAL CASUALTY COMPANY, DEFENDANT-APPELLANT.



Appeal by defendant from the City Court of Aurora; the Hon. WALTER R. O'MALLEY, Judge, presiding. Heard in this court at the October term, 1951. Judgment affirmed. Opinion filed December 5, 1951. Rehearing denied January 8, 1952. Released for publication January 8, 1952.

MR. JUSTICE ANDERSON DELIVERED THE OPINION OF THE COURT.

Rehearing denied January 8, 1952

On August 3, 1949, John Barr, at times hereinafter referred to as the assured, while driving his Chevrolet coupe, had an automobile collision with the automobile of plaintiff-appellee, Edmund Senft. Senft, having received serious personal injuries, thereafter filed suit in the city court of Aurora, Illinois, for damages sustained by him arising out of the collision. A jury trial was had and Senft was awarded damages in the sum of $10,000 by the verdict of the jury, upon which a judgment was entered for this sum by the court. The Country Mutual Casualty Company, defendant-appellant herein, took no part in this trial, refused to defend the suit on behalf of Barr, and at all times contended that the policy hereinafter mentioned had been cancelled prior to the date of the collision. An execution was issued on the judgment against John Barr and was returned by the sheriff nulla bona. Subsequent to the entry of the judgment and return of the execution, Senft, in the name of John Barr and for the use of himself, brought a garnishment proceedings in the same court to collect the above judgment from the Country Mutual Casualty Company, defendant-appellant herein, and at times referred to in this opinion as the Company. The Company filed in the court its answers to certain interrogatories propounded to the Company, denied that it was indebted in any sum whatsoever to John Barr, and alleged that a certain policy of automobile indemnity insurance, heretofore issued to John Barr by the Company prior to the date of the collision in question, had been cancelled pursuant to the terms of the policy; that due to the fact that the policy had been cancelled prior to the date of the assured's collision with Senft, the Company was not liable to Barr or Senft for any sums of money whatsoever under the terms of the policy. The trial court, after trial without a jury, entered a judgment in garnishment in favor of John Barr for the use of Edmund Senft and against the Country Mutual Casualty Company, for the sum of $10,619.92, being the amount of the judgment prior to that time entered against Barr in favor of Senft, with interest and costs thereon. The Country Mutual Casualty Company has appealed from this judgment order in the garnishment suit.

The undisputed facts, as disclosed by the record, show that the Country Mutual Casualty Company, on April 27, 1948, issued and delivered to John Barr, whose address as stated in the policy was then Hinckley, Illinois, its certain automobile indemnity policy, the Company agreeing to indemnify and pay any loss or damage sustained within the limitations of the policy by the assured arising out of the operation of his automobile. There is no dispute but that the premium on the policy had been fully paid in advance until October 6, 1949. At the time the policy was issued, Barr was living with his parents on a farm near Hinckley, Illinois. His address as stated in the first page of the policy was Hinckley, Illinois.

The Company contended in the trial court, and contends here, that the policy had been effectively cancelled prior to August 3, 1949. If the policy had been effectively cancelled, it is admitted there is no liability on the Company. The policy of insurance contained a cancellation clause of which the material parts are as follows: "CANCELLATION: This policy may be cancelled at any time by the Insured by written notice to the Company at its Home Office at Chicago, Illinois, or may 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, which shall be sufficient notice. . . . If this policy shall be cancelled, as herein provided, or become void, or cease, the cash premium having been paid, the unearned portion of such cash premium shall be returned on surrender of the policy, the Company retaining the customary short rate, except that when this policy is cancelled by the Company giving notice, it shall retain only the pro-rata cash premium. The check of the Company mailed to the Insured at his last post office address as shown by the records of the Company, or mailed to the County Farm Bureau in Illinois through which insured was last qualified for membership in the Company, as his agent, for delivery to him, shall be sufficient tender of unearned cash premium."

John Barr testified at the garnishment suit trial that about December 1, 1948, he left his father's farm at Hinckley, Illinois, and was employed in Aurora, where he first resided at 1032 Galena Boulevard; that he lived there until about March 15, 1949, when he moved to 402 Spruce Street, Aurora, Illinois, where he still resides with his wife.

The record conclusively shows that after Barr moved to Aurora, which is a few miles from Hinckley, and while the automobile policy was admittedly in force, Barr had two small losses under his policy and the same were adjusted by the Company's representatives; that the proofs of loss gave Barr's street address in Aurora, Illinois; that the last loss occurred on May 28, 1949; that the Company received at its Chicago office an accident report from John Barr, dated May 31, 1949, signed by him and giving his address as 402 Spruce Street, Aurora, Illinois; that the Company in pursuance of this notice and in conformity with Ill. Rev. Stat. 1951, ch. 95 1/2, par. 58 1 of the Motor Vehicle Law [Jones Ill. Stats. Ann. 85.064 (12)] sent a copy of this notice to the Secretary of State on June 6, 1949. The record further discloses that all notices for premiums and receipts of premiums had been mailed to Hinckley, Illinois and had been received after some delay by the assured. His father still lived on the farm at Hinckley, Illinois. Barr further testified that he never received notice of cancellation, hereinafter mentioned dated July 1, 1949, and described as Exhibit B, until the day after the accident with Senft; that the letter was at his parent's home at Hinckley; that it was unopened and he opened it on August 4, 1949, the day after the accident with Senft.

The record discloses that on July 1, 1949, the Company apparently desiring to cancel the policy, mailed from their office in Chicago the following letter described as Exhibit B, which is in words and figures as follows: "Country Mutual Casualty Company, 43 East Ohio Street, Chicago 11, Illinois, July 1, 1949." (To) "Mr. John Barr, Hinckley, Illinois.

"Our records indicate that you are no longer eligible for insurance as a dependent under the Farm Bureau membership which has qualified you in the past.

"We hereby give you notice of the cancellation of your automobile insurance policy No. 279155 issued to you by this Company, and this Company will not be liable for any loss under said policy occurring after 12:01 Central Standard Time on August 1, 1949. This cancellation is in accordance with the provisions of said policy giving the Company the right to cancel at any time upon giving you at least Five Day Notice in writing.

"To continue your insurance with this Company it is necessary that you acquire a Farm Bureau membership in your own name. If this is done, and we are so advised before the date set forth above, this notice may be regarded as void, otherwise it will be in full force and effect. Any unearned premium due you as result of the cancellation of your policy will be paid to you as soon after the date of cancellation as possible.

"We regret the necessity of this action, and trust you will call at your Farm Bureau office and avail yourself of the opportunity to become a Farm Bureau member in your own name on or before the effective date of the impending cancellation previously specified.

"Very truly yours, Country Mutual Casualty Company, By P.J. Keller."

The record further shows that following Barr's accident on August 3, he did not report the collision to the Company. On August 8, 1949, defendant Company mailed to John P. Barr, Hinckley, Illinois, their check for the sum of $9.13, the check reciting in part: "In Payment Of Return of Unearned Prem. of $9.13 on Acct. of Canc. of Pol. No. 279155, as of 8-1-49." In the form letter sent with the check the Company assigned as a reason for cancellation delinquent Farm Bureau membership, and further stated that the policy ...


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