Appeal from the Circuit Court of Kane County; the Hon. CHARLES
G. SEIDEL, Judge, presiding. Judgments affirmed.
This is an appeal from a judgment against the defendant insurance company for $10,000, the limit of its policy, plus interest and costs, and a judgment denying the prayer of its third-party complaint.
This grew out of prior suit in which Gerald Jordan, a minor, by his brother as next friend, had obtained a judgment for $15,000 against the estate of his deceased father. His mother was the nominal defendant, as administrator, and the deceased was the named insured in a policy issued by defendant.
There was a two-car collision in which Richard Jordan was the driver of one and his son was a guest therein, and the other car was driven by Rudolph Franciscy in which there were three guests. Both drivers were killed, and all the occupants injured, so that litigation resulted.
Mrs. Jordan, as administrator, sued the estate of Rudolph Franciscy, and there was a counterclaim filed by his administrator, to which there was an answer denying negligence or willful or wanton misconduct. The son was also a party plaintiff originally, by Mrs. Jordan as his mother and next friend, and after her withdrawal, by his brother, Richard James Jordan, as next friend. This suit was settled, the guardianship receiving $4,500 and the estate $5,000 with the approval in both courts.
There was also a suit by the three passengers in the other car against both estates which resulted in substantial verdicts and judgments against the Franciscy estate and not guilty in favor of the Jordan estate.
Another suit, a wrongful death action by the Franciscy estate against the Jordan estate, resulted in a verdict for the Franciscy estate, reversed on appeal under doctrine of estoppel by verdict. Franciscy v. Jordan, 43 Ill. App.2d 344, 193 N.E.2d 219.
Finally, the minor plaintiff by his brother as next friend in the present suit, sued his mother as administrator of his father's estate, alleging willful and wanton misconduct on the part of his father. As previously stated, this resulted in a $15,000 verdict and judgment for the boy, affirmed on appeal by the Appellate Court, 35 Ill. App.2d 265, 182 N.E.2d 365, and leave to appeal was denied by the Supreme Court.
The defendant company seeks to avoid liability on the ground that Mrs. Jordan, standing in the shoes of her deceased husband, the insured, violated the assistance and co-operation clause of the policy by directing and managing a cause of action as guardian of the estate of her minor son against herself as administrator of her husband's estate.
In support of this claim defendant charges "collusive conduct" on the part of Mrs. Jordan, failure to co-operate in defense of the suit against the husband, and, in effect that her actions amount to constructive fraud in conceiving and instigating a suit against herself. It is charged that the attorneys for plaintiff in this suit were also attorneys for her in all the other litigation; that she and her attorneys knew that her husband was found not guilty of negligence in the suit by the three persons in the Franciscy car; that she and her attorneys alleged her husband's freedom from negligence in the wrongful death action against the Franciscy estate which was settled; that the substitution of her son, Richard, in her place as next friend for her son Gerald, was a sham and that in doing so she was actually suing herself; that she assigned to Gerald any claims she might have had due to expenditures made by her on his behalf, and authorized Gerald to sue her; that as guardian of the estate of her son, Gerald, she petitioned for authority to expend funds to pay attorneys for prosecuting a suit against herself, and thus hired attorneys to sue herself.
Plaintiff replies that Mrs. Jordan, at all times, co-operated with defendant in all suits arising out of the occurrence; that she attended court whenever and wherever requested; that she complied with every request of the defendant in matters of defense and settlement of claims. Furthermore, it is claimed that if there were any breach of the co-operative clause, the defendant waived it by failing to elect to disclaim promptly, which has been held to be required. Allstate Ins. Co. v. Keller, 17 Ill. App.2d 44, 149 N.E.2d 482; Krutsinger v. Illinois Casualty Co., 10 Ill.2d 518, 141 N.E.2d 16.
The applicable conditions of the policy are as follows:
"5. Assistance and Co-operation of the Insured Parts 1 & 3; The insured shall cooperate with the company and, upon the company's request, attend hearings and trials, and assist in making settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of the suits. The insured shall not, except at his own costs, voluntarily make any payment, assume any obligation or incur any expenses other than for such immediate medical and surgical relief to others as shall be imperative at the time of the accident.
"6. . . . No action shall lie against the company unless, as a condition precedent thereto, there shall have been full compliance with ...