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Gomez v. Resolute Insurance Co.


OCTOBER 26, 1971.




APPEAL from the Circuit Court of Cook County; the Hon. LIONEL J. BERC, Judge, presiding.


This was an action brought by plaintiff, Edward Gomez to enforce the terms of an insurance policy issued to plaintiff by defendant. After a bench trial, judgment was entered for plaintiff and against defendant in the amount of $2,140.00, plus costs. Defendant appeals.

It appears from the record that on March 6, 1966, the defendant issued a policy insuring plaintiff's automobile against loss or damage resulting from among other things, fire. At the time the policy of insurance was issued, plaintiff resided at 1719 South Racine Avenue, Chicago. On July 4, 1966, plaintiff's automobile was destroyed by fire. Plaintiff, on February 17, 1969, filed the instant complaint alleging in paragraph (1): That on March 6, 1966, defendant issued plaintiff a policy insuring plaintiff's automobile against loss or damage resulting from, inter alia, fire; in paragraph (2), that at the time the said policy was issued, plaintiff was the owner of the automobile so insured; in paragraph (3), that on July 4, 1966, the automobile was destroyed by fire and plaintiff sustained a loss in the amount of $2,750.00; in paragraph (4), that on July 7, 1966, plaintiff gave defendant written notice of the occurrence; in paragraph (5), that the automobile was not covered by any other policy of insurance; and in paragraph (6), that plaintiff performed all obligations required of him by virtue of the terms of the policy, but nevertheless, the defendant refuses to reimburse plaintiff for the loss.

In its answer, defendant admitted the allegations in paragraph (1) of the complaint; neither admitted nor denied the allegations in paragraphs (2), (3), and (5) of plaintiff's complaint, and denied the allegations in paragraphs (4) and (6) of the complaint. In addition, defendant affirmatively alleged that "* * * the plaintiff has not kept and/or performed all the things necessary under said policy and among other things, specifically didn't advise the defendant of a change of his address which is a violation of the terms of the policy and material factor in underwriting this risk; further, the plaintiff didn't cooperate with the insurance company in the investigation of this alleged loss, although repeatedly requested to do so."

At the initial stage of the trial, the parties agreed that the Supplementary Police Report, the Recovered Vehicle Supplementary Report and the Motor Vehicle Theft Report, all of which were prepared by the Chicago Police Department, would be received in evidence by the court, without qualification or reservation. The Report of Proceedings indicates that these documents were offered and received in evidence.

The Supplementary Police Report indicates that on the evening of July 3, 1966, plaintiff parked his automobile at 1931 West Erie Street, that the following day, it was discovered to be missing, and that the automobile was found later that day at 1311 West Fillmore Street, its interior having been destroyed by fire.

The Recovered Vehicle Supplementary Report indicates, inter alia, that the interior and roof of the automobile had been destroyed by fire, that its front and rear were also damaged, that the vehicle had been stolen from 2039 South Trumbull Avenue, Chicago, and that subsequent to its discovery on Fillmore Street, it was removed to the police pound.

The Motor Vehicle Theft Report states among other things, that the location of the occurrence was 1931 West Erie Street, and the value of the vehicle to be $2,215.00.

At the trial, plaintiff testified that on July 3, 1966, he parked his car in front of his home at 1931 West Erie Street, Chicago. Plaintiff further stated that upon discovering that his auto was missing he telephoned the Police Department, a Mr. Don Murray, who was his insurance broker, and a Mr. Ray Hartnett, an insurance adjuster who had negotiated previous claims which plaintiff had against defendant. It appears that Mr. Hartnett instructed plaintiff to obtain a release from the police pound so that the car could be retrieved by the insurance company.

On cross-examination, plaintiff testified that he resided at the address indicated on his insurance policy for several weeks subsequent to its issuance, and that he never notified the company of his subsequent changes of address. Plaintiff further testified that he never submitted a written report of the incident, or a Proof of Loss. Regarding the discrepancy of addresses indicated on the various Police Reports, plaintiff stated that the police did not question him at home, but at his sister-in-law's house located at 2039 South Trumbull Avenue, Chicago.

At the conclusion of plaintiff's case-in-chief, defendant moved for a finding against plaintiff, contending that the evidence established that plaintiff violated the insurance contract by not notifying the insurer of his changes of address and in failing to submit a written report and Proof of Loss. In addition, defendant contended that the plaintiff failed to establish the value of the automobile prior to the time of its destruction. The trial judge, in denying defendant's motion, stated that there would be no basis for ruling that plaintiff violated the terms of the insurance contract due to the fact that the portions of the contract allegedly containing the provisions violated, were never offered in evidence or submitted to the court for examination. The court also found that the telephone call to Mr. Hartnett constituted sufficient notice and that plaintiff made out a prima facie case by virtue of the evidence presented and the admissions contained in the defendant's answer.

It is defendant's contention on appeal that plaintiff is precluded from enforcing his insurance contract due to the fact that he failed to file a written report and a Proof of Loss. Defendant also contends that the failure of plaintiff to report his changes of address and prove the value of his car also preclude recovery. We disagree.

• 1, 2 Regarding the contentions relating to plaintiff's failure to submit a written report, a Proof of Loss, and his failure to notify the company of his changes of address, the portions of the policy which allegedly contained these requirements were never offered in evidence. A prerequisite to a decision that a contract of insurance has been violated is that the court be apprised of the requirements of the contract. The trial judge, not having had the opportunity to examine the insurance contract, or otherwise be informed of its contents, was not in a position to rule that it had been violated.

• 3, 4 Defendant is also precluded from complaining of plaintiff's failure to submit a written report and Proof of Loss due to the fact that it did not plead the alleged lack of notice. (Maltby v. The Empire Auto Ins. Assn., 239 Ill. App. 532; Mowery v. Washington Nat. Ins. Co., 289 Ill. App. 443. These points were not at issue and were therefore waived. Briggs v. Bankers Accident Ins. Co., 214 Ill. App. 181.

• 5-7 Appellant's final contention is that plaintiff failed to prove the value of his car prior to the time of its loss and destruction. The exhibit indicating the value of the car at the time it was stolen was admitted in evidence without qualification. Defendant therefore, is not now in a position to question the admissibility of that document. (McElroy v. Force, 38 Ill.2d 528.) In determining the damages to be awarded, the trial judge had the right to consider the Police Report so admitted by agreement and in doing so, did not commit error. It is the rule that incompetent evidence may be considered for what it is worth when it is offered and received in evidence without objection. Ascher Bros. v. Industrial Com., 311 Ill. 258.

• 8-10 The issue of the value of plaintiff's automobile was a question of fact to be resolved by the trial judge on the basis of all the evidence presented. The record reveals no evidence which would contradict the value indicated on the report, or otherwise impeach the report as evidence establishing the value of the plaintiff's automobile. We cannot say that the judgment is manifestly against the weight of the evidence, and it is affirmed.

Judgment affirmed.

LYONS and GOLDBERG, JJ., concur.


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