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Linkens v. Furman

SEPTEMBER 21, 1964.

JOHN T. LINKENS AND VIRGINIA LINKENS, PLAINTIFFS-APPELLEES,

v.

HENRY FURMAN, DEFENDANT,

v.

LAKE SHORE MUTUAL INS. CO., GARNISHEE-DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. WILLIAM J. TUOHY, Judge, presiding. Affirmed.

MR. PRESIDING JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

Garnishee-defendant, Lake Shore Mutual Insurance Company, appeals from judgments entered against it, totaling $12,000. The garnishment judgments are based on plaintiffs' unpaid personal injury action judgments against an alleged insured of the garnishee-defendant.

Lake Shore contends that by reason of an endorsement, its policy of insurance provided no coverage while the insured vehicle was being operated by a person under the age of 25 years, and that the vehicle operator, defendant Henry Furman, was below that age at the time of the occurrence.

Plaintiffs contend the endorsement was inoperative and void because it was issued in defiance of a ruling of the Director of Insurance. Plaintiff also contends it was never executed by the assured owner of the car, Peggy Green, nor by anyone with her authority.

The garnishment action was tried without a jury on an affidavit for garnishment, interrogatories and answers, and admissions of fact served upon the garnishee-defendant before trial. The record also includes testimony of witnesses for the plaintiffs and for the garnishee-defendant.

Under date of October 28, 1960, Lake Shore Mutual Insurance Company issued its policy of automobile liability insurance to Peggy Green, a self-employed caterer, on her automobile, registered and licensed in her name. The policy period was from October 31, 1960, to October 31, 1961, and stamped across its first page was the legend "No drivers under 25 years of age." The policy included so-called "omnibus coverage," which insured the person named therein and any other person driving the automobile with the permission of the insured. No exclusions or conditions restricting the use of the insured automobile by drivers under the age of 25 years appear in the printed portions of the policy.

As to delivery of the policy, the secretary of Lake Shore testified to their routine procedure: "At the time of the issuance of the policy here in issue, the policy itself and several dailies would be mailed to the producer of record. A welcome letter and a letter of transmittal, and a restrictive endorsement, would then be mailed directly to the assured as the address was stated on the face of the policy. . . . No copy of the transmittal letter is kept in our file. The transmittal letter is addressed to nobody specifically." He further testified that the restrictive endorsement "was a company policy in relationship to drivers under the age of 25 years. Where there was doubt in the mind of the underwriter concerning the presence of an under age driver, a restrictive endorsement was sent out." The pertinent part of the endorsement states:

"In consideration of the Company keeping the above numbered policy in force and the Company no exercising its right of cancellation, it is hereby understood and agreed that the Coverages, provided by the above numbered policy, DO NOT APPLY while the vehicle described in the policy is being operated by any person under the age of TWENTY-FIVE (25) YEARS."

In the instant case, a restrictive endorsement was returned to Lake Shore, purporting to be signed by Peggy Green and witnessed by Shirley Hirsch, an insurance broker who handled all of her insurance business. Peggy Green testified that she had never seen the endorsement until a representative of plaintiffs exhibited it to her. She stated she had not signed the instrument and that her signature had been forged. Shirley Hirsch admitted she signed the document as "witness," but could not recall witnessing the Green signature. She also stated: "I would not recognize Peggy Green's signature."

As to the occurrence, the record shows that on February 10, 1961, defendant Furman was driving the car at the request of Peggy Green, and collided with an automobile driven and occupied by the plaintiffs. At that time, Furman was 21 years of age. After the collision, Peggy Green went to the office of Shirley Hirsch and reported what had happened, and later, representatives of the garnishee-defendant took a statement from her. After plaintiffs commenced their personal injury action against Green and Furman, defendants tendered the defense of the action to Lake Shore, and when it disclaimed any responsibility, defendants obtained their own counsel to defend the action. Peggy Green was voluntarily dismissed from the suit, and in a non-jury trial, judgments totaling $12,000 were rendered against defendant Furman.

Both parties rely on a number of points to reverse or sustain the judgments against the garnishee-defendant. However, we address ourselves to the contention which we believe is determinative here — that "the so-called endorsement relied upon as a defense to this action by garnishee-defendant was disapproved by the Illinois Department of Insurance and is illegal, ineffective, and cannot be construed less favorably to plaintiffs than if it had not been drawn." As to the rubber stamp legend, the garnishee-defendant does not contend that it reduced the insurance coverage. It "was affixed to the policy as additional notice to the policyholder that the policy contained restrictions."

On this point, plaintiffs rely on provisions of the Illinois Insurance Code (Ill. Rev Stats 1959, c 73, § 755(2)) and on correspondence in 1960 and prior to the issuance of the policy, between Lake Shore and the Director of Insurance of Illinois.

The record shows that pursuant to a rule issued by the Director of Insurance under statutory powers given him in §§ 755(2) and 1013, Lake Shore on May 4, 1960, submitted to the Director the instant restrictive endorsement, which was to be used in conjunction with ...


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