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Dalton v. Alexander

MAY 14, 1956.

FREEMAN A. DALTON, ELEANOR M. DALTON, LON DEAN DALTON, A MINOR, BY FREEMAN A. DALTON, HIS FATHER AND NEXT FRIEND, AND LINDA JEAN DALTON, A MINOR, BY FREEMAN A. DALTON, HER FATHER AND NEXT FRIEND, AND LINOX WELDING SUPPLY COMPANY, PLAINTIFFS-APPELLEES,

v.

JOHN C. ALEXANDER, H.R. ALEXANDER, AND SERVICE MOTOR CORPORATION, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Sangamon county; the Hon. CLEM SMITH, Judge, presiding. Reversed and remanded with directions.

JUDGE CARROLL DELIVERED THE OPINION OF THE COURT.

Rehearing denied June 18, 1956.

This is an action to recover for personal injuries and property damage resulting from an automobile collision which plaintiffs allege was caused by the neglect and wilful and wanton misconduct of the defendant, John C. Alexander.

The accident occurred on April 13, 1953. On April 12, 1955, the complaint was filed and on the same date summons returnable May 16, 1955 was personally served upon John C. Alexander and upon H.R. Alexander and Service Motor Corporation, nonresidents of Illinois by filing copies thereof with the Secretary of State of Illinois. On May 18, 1955 an order of default was entered as to all defendants for failure to appear or answer the complaint. On July 18, 1955, a jury demand having been withdrawn, the court heard the evidence offered on behalf of the plaintiffs and on July 26, 1955 judgments for the several plaintiffs were entered as follows: Freeman A. Dalton, $10,150; Eleanor M. Dalton, $2,000; Lon Dean Dalton, a minor, by Freeman A. Dalton, his father and next friend, $3,000; Linda Jean Dalton, a minor, by Freeman A. Dalton, her father and next friend, $500; and Linox Welding Supply Company, an Illinois Corporation, $360.

On July 11, 1955 the defendants filed their respective petitions supported by affidavits to vacate the default judgment and order of default or in the alternative to open the default judgment and for leave to answer and defend the cause on its merits. No counter-affidavits were filed.

The petitions came on for hearing on September 6, 1955 and, so far as the record discloses the court heard no evidence and the matter was taken under advisement and continued to September 27, 1955. On September 16, 1955, plaintiffs filed a motion to dismiss defendants' petitions and also filed therewith a brief of law and argument in support thereof. No disposition was made of the plaintiffs' motion. On September 27, 1955 the defendants' petitions were denied and this appeal followed.

The collision occurred on April 13, 1953 at 11 o'clock A.M. at the intersection of U.S. Route 66 with Moorehead street, a road leading into Chenoa, Illinois to the East. The weather was fair and the pavement consisting of two lanes, was dry. Plaintiff Freeman A. Dalton was driving a Buick automobile owned by Linox Welding Supply Company, North on Route 66. His wife and two minor children were riding with him. John C. Alexander, accompanied by his wife Evaline was proceeding South on said highway in a Ford car owned by Service Motor Corporation. The complaint alleges that John C. Alexander was driving and operating the Ford automobile for his own pleasure and benefit as agent or servant of H.R. Alexander and Service Motor Corporation, or in the alternative, Service Motor Corporation was the owner of said Ford automobile which H.R. Alexander and Service Motor Corporation by their, his, or its agent or servant, John C. Alexander, drove.

The plaintiff's version of the actual occurrence as it appears from the testimony of Freeman A. Dalton is that he approached the Moorehead street intersection at a speed of approximately 45 or 50 miles per hour; that there was no traffic preceding him; that the Ford car driven by John C. Alexander was coming toward him; that about the time he was 20 feet from the intersection, Alexander started turning into the intersection; that Alexander was then about 10 feet from the intersection; that plaintiff was unable to stop; that he tried to miss defendant's car by swerving to the left; that plaintiff's car went into a field or ditch.

The affidavit of John C. Alexander filed in support of his verified motion recites in substance that the Ford automobile in which he and his wife were riding at the time of the collision was loaned to him by Service Motor Corporation for his personal use and pleasure; that it was then being driven for the convenience of he and his wife and was not being used for or on behalf of any other person; that as he approached the intersection of Moorehead street with Route 66, he desired to make a left-hand turn; that he saw the Dalton Buick car approaching at a distance of 600 to 700 feet to the South; that he turned on his directional light indicating a left turn; that he considered he had ample time to make the turn safely; that he did turn and reached the point where his automobile was entirely off the paved portion of the highway; that the Buick automobile when 100 feet from the intersection, left the pavement to its right and continued along the shoulder on the East side of the paved portion of the highway and struck with its right rear against the right rear of the Ford; that the Buick continued across Moorehead street and came to a stop in a field; that when it entered the intersection the Buick was travelling 60 to 70 miles per hour and was skidding along the East shoulder of Route 66; that on the day of the accident he telephoned his son, H.R. Alexander at Fond du Lac, Wisconsin and told him of the occurrence; that on April 13, 1955 he and his wife were preparing to go to the home of a daughter in State Line, Indiana who was seriously ill and about whose condition he was worried and nervous; that he did not understand the meaning of the summons served upon him and had never been involved in any court proceedings; that he talked with the clerk of the circuit court about the matter and told him of his anxiety about his daughter's condition; that he could only recall that the clerk said it was probably someone wanting to get some easy money; that on April 13, 1955 he telephoned the Lumbermen's Mutual Casualty Insurance Company at Peoria and talked with a man whose name he did not know; that he told this man that he had received notice of suit; that he was told by the man with whom he talked that there was nothing he had to do; that the Insurance Company office had a record of the matter and would take care of it and that he had no cause to worry; that he thereafter assumed the Insurance Company knew of the suit and further assumed that H.R. Alexander, his son, had advised the Company of the suit; that he heard nothing about the matter until July 27, 1955 when he read an article in a Springfield newspaper to the effect that a judgment had been taken against him; that prior to reading the newspaper article at no time did he know that the cause had not been answered or that a judgment was to be taken against him; and that he retained no one to represent him as he believed the Insurance Company would look after his interests.

The affidavit of H.R. Alexander states that he is a son of John C. Alexander and resides at Fond du Lac, Wisconsin; that his father is 72 years of age and lives in Springfield, Illinois; that the Ford automobile which John C. Alexander was driving on April 13, 1953 was the property of Service Motor Corporation of Fond du Lac, Wisconsin; that said automobile was loaned to John C. Alexander and Evaline Alexander for their personal use; that on or about April 13, 1953, John C. Alexander informed him by telephone that the said automobile had been involved in an accident near Chenoa, Illinois on U.S. Route 66; that thereupon he notified the Dana Insurance Agency of Fond du Lac, Wisconsin of the accident; that said Agency was handling the insurance coverage on the Ford automobile involved in the accident; that Edward W. Dana, representing the Agency prepared a notice of the accident and advised affiant that the same would be transmitted to Lumbermen's Mutual Casualty Insurance Company; that nothing came to his attention relative to the claim until April 8, 1955 when he received a letter from John C. Alexander in which the father advised that he had received demands and calls from one Sylvester Carter, an attorney in Springfield, Illinois; that affiant wrote Carter suggesting that Lumbermen's Mutual Casualty Insurance Company at Peoria be contacted; that affiant then heard nothing further concerning the matter until April 16, 1955 when he received a copy of the summons by mail; that upon receipt of said summons affiant called Edward W. Dana by telephone and informed him of the receipt of the summons; that Dana stated the matter had been reported to the Insurance Company and the same would be given proper attention; that affiant also talked with his personal attorney who informed him there was nothing he need do so long as he had referred the matter to his Insurance Company and had the assurance of the Company that it would look after the matter; that he heard nothing further concerning the claim until July 29, 1955 when he received a letter from his father notifying him of the judgment; that he was then unable to locate Edward W. Dana but did call the Insurance Company office at Peoria and was informed that the Company had no knowledge of the judgment.

The affidavits of R.J. Hammond, claims adjuster and claims supervisor for the Insurance Company and Howard A. Ideson who was a claims supervisor for the Company were also filed in support of the motions. The substance of the recitals in these affidavits are that the Peoria office of the Company received notice of the accident on April 17, 1953 from its Oshkosh, Wisconsin claims office; that on May 4, 1953 the claim was assigned to John T. Burke, a company adjuster; that on June 1, 1953 the Chicago office of the Company received a letter from a law firm representing plaintiffs addressed to John C. Alexander at Springfield; that this letter suggested an attempt to settle plaintiffs' claims without court action; that on December 18, 1953 the claim was reassigned to Hammond; that during the period from December 18, 1953 to April 4, 1955 there were numerous contacts between Hammond and Brennan then representing the plaintiffs in an effort to effect a settlement of the claim; that although requested to do so several times, plaintiffs failed to furnish the adjuster with a statement of the special damages claimed; that the amount of the doctor bills for the Dalton family was $169.50 with $125 expended by them for X-rays; that Freeman A. Dalton claimed to have been totally disabled for two and one-half weeks and partially disabled for an additional three weeks but gave no estimate as to his loss of earnings; that Brennan asked $2000 in settlement of the case, which demand was later reduced to $1500; that Brennan said he thought he could get his clients to take $1000; that the last negotiations concerning a settlement took place on April 4, 1955 at which time the adjuster suggested to Brennan that a figure of $750 would be considered by the Company; that Brennan told Hammond that the offer was not acceptable and that he would refer the matter for suit to some attorney in Springfield and that at that time Hammond was given the impression by Brennan that no steps had been taken towards the filing of a suit; that on April 13, 1955 Ideson received a call from John C. Alexander and concluded that his call related to a demand made on him by the attorney for plaintiffs and that no suit had been filed.

An affidavit by Kenneth McLeod, an attorney, recites that H.R. Alexander sent him a copy of the summons on April 20, 1955; that affiant called the Dana Insurance Agency and inquired whether Lumbermen's Mutual Casualty Insurance Company had arranged to defend the action; that he was informed by the Agency that such arrangements had been made; that affiant then wrote H.R. Alexander to the effect that there was nothing further for him to do since the matter had been referred to the insurance carrier.

Summarized, the recitals of the affidavits show that H.R. Alexander notified the insurance agent at Fond du Lac, Wisconsin of the filing of the suit; that the agent assured H.R. Alexander and his attorney that Lumbermen's Mutual Casualty Insurance Company would look after the defense of the action; that the attorney for H.R. Alexander after contacting the insurance agent advised him there was nothing further for him to do concerning the matter since the same had been referred to the insurance carrier; that John C. Alexander on April 13, 1955, notified the Peoria office of the Insurance Company that he had received notice of the suit; and that the company adjuster did not understand the telephone call of John C. Alexander referred to a pending suit but was under the impression that the notice referred to a demand for settlement made by an attorney.

The Civil Practice Act provides that the court may in its discretion after final judgment set it aside within 30 days upon good cause shown. Chap. 110, Par. 174(7), Ill. Revised Statutes, 1953. The ...


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