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Walsh v. State Farm Mut. Auto. Ins. Co.

JANUARY 15, 1968.

MARIE WALSH, PLAINTIFF-APPELLEE,

v.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, A CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. THOMAS C. DONOVAN, Judge, presiding. Affirmed.

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

Plaintiff, Marie Walsh, brought an action for a declaratory judgment seeking a declaration by the court that she had a valid claim against the defendant, State Farm Mutual Insurance Company, under the latter's policy. In particular, she alleged in her complaint that she was entitled to coverage under the defendant's uninsured motorist provisions, and that the defendant had refused to honor her claim and submit it to arbitration as provided in the policy. The trial court entered judgment for the plaintiff from which this appeal is taken. No questions are raised on the pleadings.

The defendant contends on appeal that (1) the evidence adduced at trial failed to prove that the unknown car which struck plaintiff's automobile was a "hit-and-run automobile" within the meaning of the policy; and (2) the plaintiff is not entitled to recover on the policy because she failed to comply either with the notice provisions of the policy or with the requirement that she report the accident to the police within twenty-four hours.

At trial, the plaintiff testified that on May 2, 1964, she was returning home from a visit to her sister. At about 9:30 p.m. she stopped for a red light at Higgins and Route 72 in Mt. Prospect. The highway was dark and surrounded by open country. Another car had stopped for the light and was positioned to the right of plaintiff's automobile. At this time another car collided with the rear of her car causing her car to move forward about a car length. She did not get out of her car, but turned around and observed that "a man was sort of slumped over the wheel, and he was grinning and making faces at me and was waving with one hand." Plaintiff looked in her rearview mirror but she was unable to observe the other car's make or license number. The driver of the other car did not get out after the impact. The light changed and the car to the right of the plaintiff turned the corner and went on.

The plaintiff testified that she then turned around again and the driver of the car that had hit her ". . . was just making faces and waving. And he had a very funny grin on his face. I was very frightened." Neither the plaintiff nor the party who had hit her got out of their cars. She drove on and thought the other car was following her deliberately. "He would come up behind me and drop back, and come up behind me and drop back. So all I could think of was to keep going, to keep him from forcing me off the road or hitting me." The plaintiff further testified that she intended to ask for help at a restaurant she knew of and stopped to make a left turn on Landmeier Road. The car that had hit her (and had been following her since the impact) approached plaintiff's car at a fast rate of speed. She thought he was going to hit her again, but he swerved around her car and proceeded onward. She did not see the vehicle again after it passed her, but was able to observe that it was a red Rambler Station Wagon. The plaintiff was unable to observe the Rambler's license plates. She was relieved when the car passed her, and she drove straight home.

When she arrived home the plaintiff testified that she told her husband what had happened. Neither she nor her husband called the police that night. The next morning her husband called the police "just to inquire." Plaintiff testified that she didn't immediately realize her neck was injured. Two weeks after the accident the plaintiff went to a doctor. On June 1, 1964, the plaintiff filed a statement with the State Farm Mutual Insurance Company.

Patrick Walsh, the plaintiff's husband, testified that on the morning following the accident he called the Elk Grove Police Department and informed them of the accident. He told the police that his wife was unable to get the other car's license number, and had been afraid to get out of her car. He asked the police whether or not he should come in to the station to make a "regular report" of the accident. He said that the officer informed him that there "wasn't much point in following up" the accident, "since the license wasn't taken." Walsh did not leave his name with the police.

[1-4] "The principles applicable to construction of insurance contracts or policies do not differ from those governing other contracts, and the established rules of construction apply in the interpretation of contracts of insurance." ILP, Insurance, § 141. The construction of an insurance contract, therefore, entails the consideration of the instrument as a whole; and the ascertainment from the written words of the contract of the intention of the contracting parties. Pierce v. Standard Acc. Ins. Co., 70 Ill. App.2d 224, 231, 216 N.E.2d 818. The terms used in the contract are to be understood according to their plain, ordinary, and popular sense. Canadian Radium & Uranium Corp. v. Indemnity Ins. Co., 411 Ill. 325, 332, 104 N.E.2d 250. "In determining what significance should be given to language where used in a contract, the situation of the parties, the nature of the subject-matter with which they are dealing and the purpose sought to be accomplished are matters to be considered by the court." Clarke & Co. v. Fidelity & Casualty Co., 220 Ill. App. 576, p 580. (Citations omitted.)

The relevant portions of the insurance policy are as follows:

"Policy Conditions — Applicable To All Coverages . ..

"1. Notice of Accident, Occurrence or Loss. In the event of an accident, occurrence or loss, written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable. . . ." (Emphasis added.)

". . . Uninsured Automobile Coverage . . .

"Damages for Bodily Injury Caused by Uninsured Automobiles. To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury sustained by the insured, caused by accident and arising ...


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