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Klim v. Johnson

MARCH 11, 1958.

PATRICIA KLIM, A MINOR, BY EMILY KLIM, HER MOTHER AND NEXT FRIEND, AND EMILY KLIM, PLAINTIFFS-APPELLANTS,

v.

HOWARD JOHNSON, DEFENDANT-APPELLEE, ALLSTATE INSURANCE COMPANY, THIRD PARTY-DEFENDANT-APPELLEE.



Appeal from the Superior Court of Cook county; the Hon. DONALD S. McKINLAY, Judge, presiding. Affirmed.

JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

Plaintiffs obtained a judgment in a personal injury action against defendant Johnson. A supplementary citation proceeding to collect the judgment against Johnson, under the provisions of section 73 of the Illinois Civil Practice Act and Rule 24 of the Supreme Court Rules [Ill. Rev. Stat. 1957, ch. 110, §§ 73, 101.24], subsequently was instituted by plaintiffs against the third party defendant, Allstate Insurance Company, based on a contract of liability insurance covering the automobile operated by defendant Johnson. A hearing on the citation proceedings resulted in a finding by the trial court that the policy of insurance in question was null and void from its inception, and that Allstate did not have in its possession or control any money, choses in action, property or effects belonging to defendant Johnson. Plaintiffs have appealed.

Johnson applied for an insurance policy from Allstate, covering his automobile, on December 18, 1950. The agent of the insurance company prepared a written application by asking questions of Johnson and recording the answers on the application in his own handwriting. After the application was completed it was signed by Johnson. To the question: "Has any insurer ever cancelled any automobile insurance issued or refused any automobile insurance to the applicant or to any of his household?", the answer recorded is "No." On the reverse side of the application, not signed by Johnson, appears the following questions and answers:

Q. "Has applicant or any driver ever had any accident or losses?"

A. "No."

Q. "Has applicant been previously insured with another company?"

A. "No."

Johnson testified that at the time he completed the application he had with him and showed to the insurance clerk a policy of automobile insurance issued by the Industrial Insurance Company and a letter which he received from that company, which is entitled "Notice of Cancellation," and it in substance states:

"We hereby cancel the policy . . . issued to you by us . . . and give you notice of such cancellation, as provided by the terms of said policy."

The effective date of cancellation was December 22, 1950.

The agent of Allstate, who took the Johnson application, denied Johnson submitted any other policy with notice of cancellation of that policy at the time he applied for Allstate insurance.

The Allstate policy was not produced by Johnson, but the policy period was effective from December 19, 1950, to December 19, 1951. A similar policy was issued for the period from December 19, 1951, to December 19, 1952, and in December, 1952, a third policy was issued. The last two policies were issued without any additional written application.

The 1950 and 1951 policies each contained a supplemental page headed "Declarations." No. 14 of the 1950 policy was:

"During the past two years no insurer has cancelled any automobile insurance issued, or refused any automobile insurance, to the named ...


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