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Johnson v. Wade

OPINION FILED MARCH 25, 1977.

JOHN JOHNSON, PLAINTIFF-APPELLEE,

v.

QUEDESSIA WADE, DEFENDANT. — (KENILWORTH INSURANCE COMPANY, GARNISHEE-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR J. DUNNE, Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

This is an appeal from a judgment entered in favor of plaintiff in a garnishment proceeding brought against garnishee, Kenilworth Insurance Company, to satisfy plaintiff's damage award previously recovered against garnishee's assured, Quedessia Wade. On appeal, garnishee contends that assured breached the cooperation clause in her insurance policy.

At a bench trial the following pertinent facts were adduced.

Gary B. Friedman for the garnishee

He is an attorney employed by the law firm of Orner & Wasserman. Garnishee retained them to represent assured in the underlying action. Because assured's case was listed on the trial assignment call for September 18, 1974, he sent her a letter on August 16, 1974, notifying her of this fact. The letter requested that she contact him immediately and inform him if she would be available on that date. He received no response and therefore phoned her on September 17, 1974, but was unable to reach her. The following day the case was assigned to a trial judge, but he did not appear at the assignment call.

After the trial court denied his motion for a continuance on Thursday, September 18, 1974, he hired two investigators, Marshall Musick and Harold Prince, to locate Quedessia Wade. On Monday morning Prince informed him that she refused to appear and he attempted to withdraw as her counsel. The court denied this motion also. No further attempts were made to contact assured after September 23, 1974.

On cross-examination, he acknowledged that Quedessia Wade had fully cooperated with his office prior to this incident.

On re-cross-examination, he admitted that between August 16, 1974, and September 17, 1974, he made no attempt to contact her. He also admitted his office did not have a docket system to remind him to contact witnesses and clients as the time of trial approached. Each attorney handled this on his own.

Harold Prince for the garnishee

Friedman retained him on September 20, 1974, to locate assured. Three times that evening he stopped at 456 West 61st Place, however, no one answered the door. When he returned the following morning, he saw a black man, approximately 5'11" tall and of slender build sitting on the porch. He informed the man that he was an investigator for Kenilworth Insurance Company and that "he wanted Mrs. Wade to come to court in regard to her case * * *." The man told him, "You're at the wrong house * * * the Wade's do not live here" but suggested he try at a house further down the block. There, a woman directed him back to 456 West 61st Place. After rechecking his "sources" and verifying that Wades lived at 456 West 61st Place, he returned there and found assured with the man he had talked with earlier. The man again told him he was at the wrong house. He then asked the people next door where the Wades lived. They told him "You just left them. You just got through talking to Mrs. Wade." After confirming through other neighbors that Wades lived at 456 West 61st Place, he returned there with a subpoena, but no one answered the door. In all, he visited the house seven times, however, only once, on the occasion just described, did he contact anyone. On Monday he attempted to subpoena Mr. Wade at the Victor Chemical Company, however, he was not at work that day.

On cross-examination, he admitted that he never talked to assured. Nor did the man he talked with ever identify himself as Mr. Wade.

Marshall Musick for garnishee

Friedman hired him on September 19, 1974, to locate assured. Pursuant to this assignment he attempted to phone her at Triangle 3-8049 "almost every hour and a half on September 21 and 22, 1974." Several times someone answered, but they did not identify themselves. He told the party he worked for Orner and Wasserman and that he was trying to contact Mr. and Mrs. Wade to tell them to be in court on Monday morning. He further warned him that defendant had to be in court "cause when Mr. Friedman gives you an order, he expected it to get carried out." He also went to 456 W. 61st Place on either Friday or Saturday. There he saw a black ...


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