Appeal from the Superior Court of Cook County; the Hon. ARTHUR
A. SULLIVAN, Judge, presiding. Reversed.
MR. PRESIDING JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
This is a garnishment proceeding, arising out of a personal injury suit brought against defendants. Defendant Green's insurer, garnishee-defendant Highway Casualty Company, appeals from a $10,000 judgment in favor of defendant Hooker Glass on its counterclaim against its co-defendant, Green.
The record shows that Hooker Glass, as a retailer, bought a stepladder from Highway's insured, Harry A. Green and Son, Inc., a manufacturer. Hooker Glass then sold the ladder at retail to plaintiff, Frank C. Guetter, who was injured when the ladder broke. Guetter sued both Green, as manufacturer, and Hooker Glass, as the retailer, and recovered a general verdict and judgment of $16,250 against both defendants on February 14, 1961. Highway, on behalf of its insured, Green, the manufacturer, paid Guetter $10,000 on his judgment, and Hooker Glass paid the balance.
After the satisfaction of the original judgment, Hooker Glass proceeded with its pending counterclaim against Green, then a bankrupt. The counterclaim was based on the alternative theories of (a) active-passive negligence, with ultimate liability falling upon Green as the active tort feasor, and (b) implied liability arising under the Uniform Sales Act.
In a non-jury trial, Judge Wilbert F. Crowley on October 13, 1961, entered a judgment order against counterdefendant Green and in favor of counterplaintiff Hooker Glass, in the sum of $11,350. The order referred to the February 14, 1961, judgment and found "the evidence and the verdict of the jury and the judgment entered thereon is binding upon the counterdefendant Harry A. Green and Son, Inc., as to the matters at issue in the trial of the Complaint of Frank C. Guetter, and these issues cannot be further litigated between the parties to the counterclaim," and made affirmative findings for the counterplaintiff both on the theory of a breach of implied warranties under the Uniform Sales Act and on the theory that counterdefendant, manufacturer Green, was guilty of active negligence, and the counterplaintiff, retailer Hooker Glass, was guilty of passive negligence.
The order further found the counterplaintiff, Hooker Glass, tendered the defense of the litigation to counterdefendant, Green, by letter dated November 18, 1954, which tender of defense was wrongfully declined by counterdefendant, Green, rendering it "liable for the reasonably foreseeable damages accruing from said wrongful refusal." The order allowed $5,000 for attorney's fees and $100 for costs, in addition to the $6,250 Hooker Glass had paid to plaintiff Guetter. The court further found that there was no triable issue of fact to which the counterdefendant was entitled to a trial by jury.
Hooker Glass, to enforce its judgment on the counterclaim against Green, then garnisheed Green's insurance company, Highway Casualty Company, which answered, "No funds." Highway's answer was contested by Hooker Glass, and after an extensive hearing, in which no testimony was taken, Judge Arthur A. Sullivan on May 22, 1963, entered a judgment order in the garnishment proceeding, based on the judgment order of October 13, 1961, and the insurance policy. The court found "that counterplaintiff is a person who sustained damages arising out of the bodily injury of the plaintiff Frank C. Guetter within the meaning of said section 6 [of the policy], that this proper interpretation appears from the face of said insurance policy and is not dependent upon extrinsic evidence." The court entered judgment against Highway, as garnishee, and in favor of Hooker Glass for $10,000, which was the alleged balance of the $20,000 coverage for one accident. This is the judgment order appealed from.
Highway's determinative contention is that the trial court misconstrued the policy provisions and exclusions, in that plaintiff Guetter was the "only person injured" within the meaning of the policy, and the payment of $10,000 to him in part satisfaction of his $16,250 judgment against Green and Hooker Glass exhausted Highway's liability. Our disposition of this contention makes it unnecessary to consider at length Highway's other contention that the counterclaim judgment, on which the garnishment is based, "was utterly void and of no effect because it was in excess of the court's jurisdiction and as such, subject to attack, direct or collaterally at any time."
We have scrutinized all of the proceedings in this record leading up to and including the entry of the judgment order of October 13, 1961, and find no merit to Highway's contention that it is a void order. In the absence of a timely appeal from that judgment order, we conclude that it was final and valid at the time of the entry of the garnishment judgment on May 22, 1963.
We next consider Highway's contention that its policy did not afford coverage for Hooker's claim for indemnity, and that plaintiff Guetter himself was the only person injured within the meaning of the policy and its exclusions and conditions. The exhibits show that the "Limits of Liability" were $10,000 each person, $20,000 each accident, and $20,000 aggregate, with coverage for "(A) Bodily Injury Liability." The following provisions of the policy are pertinent to the instant issue.
"1. Coverage A Bodily Injury Liability
"To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages, including damages for care and loss of services, because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person or persons, caused by accident and arising out of ...