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Mccann v. Continental Casualty Co.

OPINION FILED SEPTEMBER 23, 1954

DONALD MCCANN, FOR THE USE OF KENNETH OSTERMAN, APPELLEE,

v.

CONTINENTAL CASUALTY COMPANY, APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. FRANK H. BICEK, Judge, presiding.

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

Rehearing denied November 15, 1954.

Continental Casualty Company, defendant-garnishee in a garnishment action, appeals directly to this court from a judgment of the circuit court of Cook County in a proceeding to enforce liability of the garnishee on a certain insurance policy, the direct appeal being on the theory that the action involves the validity and constitutionality of section 42-11 of the Motor Vehicle Act. Ill. Rev. Stat. 1953, chap. 95 1/2, par. 58k.

One William J. Kenealy was the owner of a certain motor scooter purportedly covered by the insurance policy in question issued by Continental Casualty Company. Donald McCann injured one Kenneth Osterman while driving said motor scooter without the knowledge of the owner but with the permission of the owner's minor son. A default judgment was entered against McCann for $7500 for damages arising from such injuries.

The insurance policy covering the motor scooter contained a special endorsement limiting coverage to the named insured and those relatives of the named insured who were members of his household. Donald McCann was neither a relative nor a member of the household of the owner of the scooter.

The instant garnishment action was instituted to enforce the liability of the insurance company under said policy.

The traverse of plaintiff to defendant-garnishee's answer to interrogatories submitted has not been included in the record. A motion to strike plaintiff's traverse was denied and nothing appears in such motion raising any issue as to the validity of said section 42-11 of the statute here in question.

From the evidence introduced at the garnishment hearing, it was clearly established that the owner of the motor scooter had granted permission to his minor son to allow his friends to drive the scooter if they were dependable, and that such permission was in effect on the date of the accident.

The insurance policy in question was also introduced in evidence and section 8 of the conditions thereof reads as follows:

"8. Financial Responsibility Laws — Coverages A and B:

Such insurance as is afforded by this policy for bodily injury liability or property damage liability shall comply with the provisions of the motor vehicle financial responsibility law of any state or province which shall be applicable with respect to any such liability arising out of the ownership, maintenance or use of the automobile during the policy period, to the extent of the coverage and limits of liability required by such law, but in no event in excess of the limits of liability stated in this policy. The insured agrees to reimburse the company for any payment made by the company which it would not have been obligated to make under the terms of this policy except for the agreement contained in this paragraph."

Section 23 of the conditions of the same policy provides as follows:

"23. Terms of Policy Conformed to Statute:

Terms of this policy which are in conflict with the statutes of the State wherein this policy is issued are hereby ...


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