Appeal from the Circuit Court of Kane County; the Hon. JOHN S.
PETERSEN, Judge, presiding. Judgment reversed and cause remanded
The plaintiff, Lee Gieseke, Administrator of the Estate of William Gieseke, deceased, filed his three-count complaint in the Circuit Court of Kane County seeking recoveries against Hardware Dealers Mutual Fire Insurance Company and M.F. Wallensack. Counts One and Two are not involved in this appeal. The issues made by Count Three and the defendants' answer thereto were heard by the court, without a jury, resulting in a judgment against both defendants for $10,000 and they appeal.
Count Three alleged that plaintiff's intestate, William Gieseke, on or about October 1, 1960, ordered and contracted for a certain policy of insurance with the defendant, Hardware Dealers Mutual Fire Insurance Company, through its duly authorized agent, M.F. Wallensack, at the agency of the company in Elgin, Illinois; that the insurance contracted for was casualty insurance on his 1958 Corvette automobile; that said order and contract for insurance was for "like insurance coverage with that then and there possessed by his father, Lee Gieseke, which said Lee Gieseke then and there had in force and effect with defendant, Hardware Dealers Mutual Fire Insurance Company, covering a 1959 Plymouth Savoy automobile; that the coverages on said policy included bodily injury liability, collision or upset, with $100 deductible feature, death indemnity in the principal sum of $10,000 and total disability with a weekly indemnity of $50; that the premium therefor in the sum of $221.69 was arranged on credit terms of $73.90 on receipt of policy, $73.90 on November 1, 1960, and $73.90 on December 1, 1960, which said decedent was prepared to pay in accordance with such arrangement."
The complaint then alleged that on October 15, 1960, while the insurance coverage so ordered by plaintiff's decedent was in full force and effect, but before the delivery to him of the written policy of insurance, decedent drove his insured vehicle off the paved portion of the highway upon which he was travelling and received injuries from which he died the same day.
This count of the complaint then alleged that the policy of insurance so ordered and contracted for, "when delivered to decedent after his death," did not contain provision for payment of benefits thereunder for accidental death in accordance with the order for and contract of insurance and assurance of the agent.
The answer of the defendants denied that decedent ordered or contracted for insurance coverage like that possessed by or in effect with Lee Gieseke, denied that decedent ordered or contracted for any such coverage as alleged, admitted that the policy issued did not contain any provision for the payment of benefits thereunder for accidental death and denied that there was any order for such insurance by deceased or any contract therefor on behalf of defendants or either of them.
Upon the hearing Lee Gieseke testified that on or about October 1, 1960, his son, William, purchased a 1958 Corvette automobile; that about that date he called defendant, Wallensack, on the phone and, as abstracted, this witness said: "In the conversation between Mr. Wallensack and I, we talked about insurance for my son's car. I was contracting the insurance for my son. I told Mr. Wallensack that he was purchasing the car Saturday and that I wanted the same contract of insurance as I had. Mr. Wallensack read out the coverages in my policy and came up with a price. At the time of the conversation I had my policy of insurance on my car. I told Mr. Wallensack that my son would take delivery of his car on October 1, 1960, the Saturday following the conversation. I knew at that time that Mr. Wallensack represented Hardware Dealers Mutual and he discussed with me the various provisions in my policy. The provisions of the policy were fifty and one hundred thousand liability, uninsured motorist protection, the $10,000 death clause, the $100 deductible, medical coverage and so forth. We discussed the fact that Mr. Wallensack was to break the premium payment up into three payments, due about 60 days apart. Mr. Wallensack gave me a rough figure of $247 as the cost of the policy. At that time I had my own automobile and insurance coverage on it. The conversation between Mr. Wallensack and I ended about that time. Mr. Wallensack said he would take care of it for me."
Lee Gieseke further testified that the next time he had any further conversation with Mr. Wallensack was on October 13, 1960, at which time Wallensack called him over the phone and told him that the insurance could not be issued with liability limits of fifty and one hundred thousand dollars, and that it would be issued with limits of twenty-five and fifty thousand dollars.
On cross-examination Mr. Gieseke stated that he did not know the motor or serial number of his son's automobile but that information was given Mr. Wallensack by the insured, William Gieseke. Lee Gieseke further testified that when Mr. Wallensack phoned his home on October 13, 1960, he, Lee Gieseke, answered the phone and that Wallensack talked to him first and then Wallensack talked to his son, William, the insured.
Merle Gieseke testified that she was the wife of Lee Gieseke and mother of the insured, William Gieseke; that she was present when her husband had his first phone conversation with Mr. Wallensack; that she could not hear what Wallensack said to her husband, but heard her husband say to Wallensack that he, her husband, "wanted insurance for our son's car and that he wanted the same policy my husband, himself, had."
The only other witness who testified on behalf of the plaintiff was Morris F. Wallensack, who was called by the plaintiff under Section 60 of the Practice Act. Mr. Wallensack testified he had lived in Elgin sixteen years; that he was an insurance agent for Hardware Dealers Mutual Fire Insurance Company and that he had known Lee Gieseke for eight years but had not sold him the policy referred to in the record as Plaintiff's Exhibit No. 1. This witness testified that this policy was not sold through his agency and he did not know the name of the agent who sold it to him. This witness also identified the policy covering William Gieseke's automobile and stated that it was written through his agency. He further testified that the rates set forth in Plaintiff's Exhibit 2, which was the policy covering William Gieseke's automobile, reflected the correct rates for the coverages enumerated in that policy.
Mr. Wallensack further testified that before the policy covering William Gieseke's automobile was issued he discussed that insurance with Lee Gieseke briefly; that for an accidental death provision in the principal sum of $10,000 in such a policy as that issued to William Gieseke, the premium would be four dollars a year; that such coverage was not requested by Lee Gieseke at the time he discussed William Gieseke's insurance policy with Lee Gieseke and that the weekly indemnity provision was also not requested to be included in the William Gieseke policy by Lee Gieseke.
This witness, Mr. Wallensack, further testified that on or about October 1, 1960, he was contacted by William Gieseke in relation to insurance coverage on his 1958 Corvette automobile; that the original call for that insurance came from Lee Gieseke; that when Lee Gieseke stated he wanted the same insurance coverage on his son's car that he had on his car, Mr. Wallensack said, "Well, now let's get these specific coverages down. What do you want?" To this query Lee Gieseke stated that William Gieseke was there and that he, Wallensack, "could talk to him and that it was time for him to discuss what he wanted."
When called as a witness to testify in his own behalf, and in behalf of his co-defendant, Mr. Wallensack, referring to the initial telephone conversation he had had with Lee Gieseke, said that conversation took place on September 30, 1960, and that Lee Gieseke stated that his son, Bill, wanted insurance; that Wallensack then asked him what type of coverage William wanted and Lee Gieseke replied. "Well make it the same as mine." As abstracted this witness continued: "I then began to question Lee Gieseke specifically concerning whether he wanted each of the individual coverages in his policy to be included in William Gieseke's policy, at which point Lee Gieseke ...