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Janssen v. Worthington

SEPTEMBER 23, 1968.

LAWRENCE M. JANSSEN AND JOYCE

v.

JANSSEN, PLAINTIFFS-APPELLEES,

v.

LLOYD E. WORTHINGTON, DEFENDANT, STATE SECURITY INSURANCE CO., CITATION RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Lake County; the Hon. BERNARD JURON, Judge, presiding. Judgment affirmed.

MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT.

In July, 1965, the defendant State Security Insurance Company, issued a policy of insurance to the defendant, Lloyd E. Worthington, who gave his address, at that time, as 3220 Gilboa Avenue, Zion, in Lake County. On August 14, 1965, the defendant Worthington's automobile collided with plaintiffs' auto, causing personal injury and property damage. On August 16, 1965, Mrs. Worthington called the insurance company to report the accident, giving their address as 3021 Galilee, Zion, and the written report, filed on August 24th, also showed that address.

Plaintiffs' complaint was filed on September 14, 1965. On September 20th, Mrs. Worthington called the insurer and left her sister-in-law's phone number.

In November, the plaintiffs filed written interrogatories and, shortly thereafter, the attorneys for the insurance company sent a letter to the defendant, addressed to 3220 Gilboa, requesting a conference. The letter was not returned. In December the attorneys for both sides set up a deposition to be taken in the following February. On February 3, 1966, the attorneys for the insurance company addressed a letter to the individual defendant at the Gilboa address, advising him of the deposition. That letter was not returned. When the attorneys for the insurance company were unable to contact the defendant, the deposition was continued to April 26th, and again they sent a letter to the defendant at 3220 Gilboa informing him of the new date. This letter was not returned.

On April 25th, defendant's attorneys called plaintiffs' attorney to say that the defendant would be unavailable for his scheduled appearance on the 26th and, on April 28th, subsequent to defendant's failure to show and upon receipt by defendant's attorneys of plaintiffs' notice on a motion to debar, another letter was written to Worthington at 3220 Gilboa, stressing the necessity of his appearance on May 2 and stating that his failure to do so would prompt his attorneys to withdraw. This letter was returned to the sender.

On May 5, two letters were sent defendant, (one by certified mail), addressed to 3021 Galilee. Both were returned to defendant's attorneys.

The motion to debar was continued to May 6th, at which time it was ordered that defendant pay $180 in attorneys' fees and be debarred in the event of his failure to comply. Also on May 6th, a motion by defendant's attorneys to withdraw was entered and continued to May 23 for the purpose of sending out a new notice of withdrawal to defendant. With this intent, certified letters were directed to defendant at each of his three known addresses; all were returned.

On May 13th, defendant's attorneys requested that a State Security investigator be sent out to locate the assured. The investigator's report of the 16th was negative and, subsequently, a leave to withdraw was granted on May 23, 1966.

Two days later, defendant called and gave a new address and telephone number. A letter was directed to him at that address, which was again returned.

On June 8, 1966, Worthington called, stating he would be in the office on that "Thursday," but failed to show. An investigator was directed to the last given address, 6029 S.E.berhardt, Chicago. On June 15, Mrs. Worthington called and made an appointment for her husband on the following day.

Defendant came to the office on June 22nd, was informed of the $180 judgment and was to return on the 24th, an appointment he failed to keep.

The motion to debar, filed by plaintiffs on May 26th, reads, in part, as follows:

". . . Thereafter, at defendant's request, a new discovery deposition was set for hearing on April 26, 1966, at 2:00 p.m. with the assurance that the defendant would be available on that date. Thereafter, on April 25, 1966, plaintiffs' attorneys received a call from the office of defendant's attorneys inquiring whether or not plaintiffs would be available for the deposition and were advised that plaintiffs had been notified and would appear. Thereafter, on April 26, 1966, the date set for the deposition aforesaid, defendant's attorneys called plaintiffs' attorneys to advise them that the defendant would not be present for the deposition.

"That the plaintiffs have been seriously inconvenienced and put to unnecessary additional expense by reason of the settings aforesaid and the cancellations thereof, without furnishing plaintiffs or their ...


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