Appeal from the Circuit Court of Champaign county; the Hon.
BIRCH E. MORGAN, Judge, presiding. Judgment affirmed.
Rehearing denied and opinion modified December 13, 1960.
This is an appeal by defendant-garnishee Illinois National Casualty Co., from a judgment in garnishment entered on a jury verdict in favor of plaintiff Peter Haskell, judgment creditor of an employee of National Casualty's insured.
Originally, Haskell sued Albert Siegmund and others to recover for injuries sustained on August 6, 1955. Haskell and Siegmund had been riding west on Route 150 near Fithian, Illinois, in an automobile operated by Siegmund. They came upon a motorist whose automobile was stuck in a ditch beside the highway. Siegmund stopped for the purpose of aiding the distressed motorist. However, he did not pull off the highway. Rather, he stopped with the left wheels of his automobile on the highway and thus partially blocked westbound traffic. Shortly thereafter another automobile, proceeding west on the highway, swerved to avoid the Siegmund car and struck Haskell, who, in the meantime, had alighted from the Siegmund automobile. After trial to a jury, Haskell recovered a judgment against Siegmund and another in the amount of $35,000. On appeal by Siegmund, the judgment was affirmed by this Court (16 Ill. App.2d 428, 148 N.E.2d 625). The Supreme Court of Illinois denied Siegmund's petition for leave to appeal.
Thereafter, Haskell brought this garnishment action against the Illinois National Casualty Company ("National Casualty"), whose counsel had defended Siegmund in the original action.
National Casualty asserted several defenses to the garnishment action, chief among which were (1) that the automobile driven by Siegmund was not one of those covered by the automobile casualty public liability fleet policy issued by National Casualty to Siegmund's employer, Walter Peterson, (2) that Peterson had not given Siegmund permission to use the automobile, and (3) that National Casualty had not received timely notice of the accident. Issues of fact were joined, and the garnishment case was tried to a jury. National Casualty appeals from the judgment entered on the jury's verdict in favor of Haskell.
The evidence introduced at the trial established that Siegmund's employer Walter Peterson operated a shelling and trucking business in Gibson City, Illinois. In 1955, National Casualty issued an automobile public liability policy to Peterson. Attached to the policy is a "Fleet Schedule" which describes various vehicles, including a 1942 Chevrolet sedan, identified by its serial and motor numbers. The policy covers Peterson and any person using any of the designated vehicles "with his permission."
On October 19, 1955, Peterson told Roy Parrett, an agent for National Casualty in Gibson City, that he had been informed that someone was claiming that one of the vehicles designated in Peterson's fleet policy had been involved in an accident near Fithian, Illinois, on August 6, 1955. Parrett forwarded this information to National Casualty's claim department in Springfield, Illinois. Addison Klophel, an investigator for National Casualty, was assigned to the case on October 21. On that day, Klophel obtained a written statement from Peterson. In that statement Peterson related that he had given Siegmund permission to use the 1942 Chevrolet on the evening of August 5. Thereafter, on November 2, Klophel obtained a similar statement from Siegmund. The next day Klophel obtained a supplemental statement from Peterson which confirmed his loan of the car to Siegmund.
Haskell had commenced suit against Siegmund on October 21st. Siegmund's mother sent the summons to Peterson on November 4th. On November 5th Peterson mailed National Casualty the summons in the Haskell case, which had been served on Siegmund, together with the letter Siegmund's mother had sent to Peterson with the summons. On November 16, National Casualty's Claims Attorney, Robert M. Wham, wrote Siegmund, stating that Siegmund was driving Peterson's 1942 Chevrolet Fordor sedan on August 6, and was involved in the Haskell accident, but because it appeared Siegmund did not have Peterson's permission to use the automobile and therefore was not an "insured" under the policy, and because Siegmund, if he was an "insured" under the policy, failed to give notice of the occurrence as soon as practicable, National Casualty would defend Siegmund in the Haskell suit, but without thereby admitting liability under Peterson's policy. Thereafter, the original suit was litigated in the trial and reviewing courts, resulting in the final judgment upon which this garnishment action is based.
Peterson died before trial of the garnishment action. Siegmund, who was 19 years old at the time of the accident, left Peterson's employ shortly after August 6, 1955. He was thereafter convicted of the crime of forgery and was incarcerated. Neither Peterson nor Siegmund testified at either trial.
In the trial of the garnishment action, while the jury was being selected, but before the trial commenced, plaintiff's counsel moved, outside the presence of the jury, that National Casualty be directed to produce for use of plaintiff on the trial nine specific documents, including the Peterson and Siegmund statements. The trial judge allowed this motion over National Casualty's objection, inter alia, that the documents were procedure by it in preparation for trial and therefore were, under the express recitals of Supreme Court Rule 19-5, not subject to discovery and production. Affiant in each of these statements states that Siegmund was driving Peterson's 1942 Chevrolet Fordor sedan on the night of August 5-6, 1955, with Peterson's permission.
The first contention advanced by National Casualty on this appeal is that there was no competent proof that the automobile driven by Siegmund on August 6, 1955 was the 1942 Chevrolet covered in Peterson's policy. We cannot agree. The letter written by National Casualty's Claims Attorney after National Casualty had investigated the case, contains the unequivocal admission, "at the time (of the accident) you had Mr. Peterson's 1942 Chevrolet four door sedan." As National's Claims Attorney, Mr. Wham had authority to make this admission. Merchants' Dispatch Trans. Co. v. Leysor, 89 Ill. 43, 47-48 (1878); see also Home Ins. Co. of New York v. Hall, 192 Ark. 283, 91 S.W.2d 609, 610 (1936). It is not necessary that he have had personal knowledge of the fact in order to make an admission of the truth thereof binding upon his client. Susemiehl v. Red River Lumber Co., 306 Ill. App. 430, 438-441, 28 N.E.2d 743, 746-747 (2d Dist. 1940); compare Fortney v. Hotel Rancroft, Inc., 5 Ill. App.2d 327, 333-334, 125 N.E.2d 544, 547-548 (1st Dist. 1955). The reason for this rule has been stated to be that "when a man speaks against his own interest it is to be supposed that he has made an adequate investigation." McCormick on Evidence (1954), sec. 240, p. 507.
Moreover, Peterson's written statements to Klophel that he loaned the 1942 Chevrolet to Siegmund were admissible as declarations against his pecuniary interest, a well established exception to the hearsay rule. Republic Iron & Steel Co. v. Industrial Commission, 302 Ill. 401, 405, 134 N.E. 754 (1922); Cleary, Handbook of Illinois Evidence sec. 13.19 (1956); 5 Wigmore on Evidence, sec. 1455 et seq. (3d ed. 1940). The tests for admissibility of declarations against pecuniary interest are set forth in German Ins. Co. v. Bartlett, 188 Ill. 165, 173, 58 N.E. 1075, 1077 (1900):
". . . (1) The declarant must be dead; (2) the declaration must have been against the pecuniary interest of the declarant at the time it was made; (3) the declaration must be of a fact in relation to a matter concerning which the declarant was immediately and personally cognizable; and (4) the court should be ...