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Pimentil v. Milo Brooke

JUNE 29, 1956.

LOUIS PIMENTIL, APPELLANT,

v.

MILO BROOKE, INC., APPELLEE.



Appeal from the Circuit Court of Cook county; the Hon. JULIAN P. WILAMOWSKI, Judge, presiding. Judgment affirmed.

PRESIDING JUSTICE LEWE DELIVERED THE OPINION OF THE COURT.

This is an action to recover damages for breach of an alleged oral contract to insure plaintiff for public liability resulting from any accident involving the automobile purchased by plaintiff from defendant. After the proofs were closed, defendant moved for a directed verdict. Judgment on the motion was reserved and the cause submitted to the jury. The jury being unable to reach a verdict, defendant's motion was granted and judgment entered accordingly. Plaintiff appeals.

The principal question presented is, whether plaintiff adduced evidence sufficient to establish the necessary elements of an oral preliminary contract to insure plaintiff against public liability.

The history of the transaction may be briefly stated. Plaintiff, a native-born Puerto Rican, went to defendant's place of business for the purpose of purchasing a used automobile. After plaintiff decided on a car, he discussed with defendant's salesman, one Horner, the terms of purchase. During this discussion, the subject of insurance was raised by plaintiff. His testimony on this subject was as follows:

"Then I told him, `I want a good insurance for the car.' I said, `I want a good insurance for the car because I don't want no trouble,' and he [salesman Horner] asked me what kind of insurance I wanted. I told him, `I wanted full cover insurance.' Then I tell to Mrs. Morreales [a friend of plaintiff] to explain to him because she knows a little Spanish and I tell her in Spanish and then she can explain it in English.

"Then Horner asked what kind of insurance I wanted. He asked me, `If you hit some boy come from school, or another car, cover them?' I told him, `That is what I want because I don't want no trouble.' Then he told me, `You got it.'"

Several weeks later, plaintiff received the insurance documents consisting of a $50 deductible comprehensive policy on the car, a policy on plaintiff's life to the extent of the financial obligation, and a bail bond. There was no public liability policy included.

In September, 1953, plaintiff was involved in an automobile accident and subsequently was found liable in a negligence action. In that action, judgment was entered against plaintiff in the amount of $35,000. In the case at bar, plaintiff seeks to recover damages alleged to have been sustained in the former suit.

In considering defendant's motion for a directed verdict, it is the duty of the court to examine the record and determine whether there is any evidence, which, taken with its intendments most favorable to the plaintiff, tends to prove the essential elements of the complaint. (Sims v. Chicago Transit Authority, 4 Ill.2d 60.)

Plaintiff says that the elements of the oral contract to insure may be implied from the surrounding circumstances.

The law seems well established that preliminary contracts to insure may be proved by parol as well as written evidence. (Welch v. Northern Assur. Co., 223 Ill. App. 77; Concordia Fire Ins. Co. v. Heffron, 84 Ill. App. 610. See also, Cottingham v. National Mut. Church Ins. Co., 290 Ill. 26.) The elements of the preliminary contract may be implied from past dealings between the parties (Fisher v. Underwriters at Lloyd's London, 115 F.2d 641 (CCA 7th, 1940)); correspondence between the parties (Cottingham v. National Mut. Church Ins. Co., 290 Ill. 26); or from conversations or customs prevalent in the locale (Concordia Fire Ins. Co. v. Heffron, 84 Ill. App. 610).

In announcing the rule in the Cottingham case, 290 Ill. 26, our Supreme Court, adverting to Eames v. Home Ins. Co., 94 U.S. 621, said at page 32:

"It is sufficient if one of the parties to such a contract proposes to be insured and the other party agrees to insure, and the subject, the period, the amount and the rate of insurance are ascertained or understood and the premium paid if demanded."

In that case, the court found that the parties' correspondence contained the amount of insurance; the subject of insurance; the first year's premium, though not designated by amount, in a formula known to the parties; and the period of coverage. Further, there had been no demand for the premium payment. Under these circumstances, the ...


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