Citations
- 329 Ill. App. 257
Full opinion text
Mr. Justice Lewe
delivered the opinion of the court.
This is a garnishment proceeding upon an automo-Mle insurance policy issued by defendant to Clarence Ezell. At the time the policy was in force Ezell’s automobile, wMle being driven by plaintiff Paul R. Pallaseh, collided with an automobile driven by one James McNamara who was fatally injured in the collision. Helen Hinchy McNamara, administratrix of the estate of James McNamara, deceased, brought suit against Ezell and Pallasch to recover damages arising out of their alleged negligent act. In the original proceeding against Ezell and Pallasch, defendant appeared by counsel in behalf of Ezell. Pallasch, nominal plaintiff in the present suit, engaged his own counsel. A jury trial resulted in verdicts for Helen Hinchy McNamara as administratrix for $5,000 against Pallasch. Ezell was found not guilty. Judgments were entered on the verdicts. An execution was issued against Pallasch, which was returned nulla bona. Subsequently the administratrix instituted the present proceedings on the Ezell policy against the defendant corporation to recover the amount of her judgment against Pallasch. A trial by jury resulted in a verdict for plaintiff in the sum of $5,000 and interest from December 11, 1940. Defendant filed motions for judgment notwithstanding the verdict and for a new trial. On the motion for judgment notwithstanding the verdict the trial court entered judgment for defendant. Plaintiff appeals.
In February 1938 Paul E. Pallasch was the manager of the Kruse service station where Ezell kept his1 Chevrolet automobile. Ezell was granted parking facilities at the service station without charge under an arrangement with Kruse service station to purchase all of his gasoline and oil from it. About two or three weeks prior to February 11, 1938, Ezell purchased a “Phillips 66” battery for his automobile from Kruse “service station, which carried an unconditional guarantee for one year. On several occasions the battery failed to function properly and was replaced. On February 11, 1938, Mrs. Ezell came to the service station to get her husband’s automobile. On this occasion it was necessary to replace the battery in order to get the car started. When she returned to the Kruse service station she directed Pallasch to get the car fixed. That evening Pallasch drove the automobile to a private garage situated in the rear of his home where he and one Mike Kobylski, also an employee of the Kruse service station, spent about two hours in locating a short circuit which had caused the battery failure. On the following morning, February 12, while Pallaseh was driving Ezell’s automobile back to the Kruse service station for the purpose of parking it there, the collision occurred which resulted in the death of James McNamara. The policy issued by defendant to Ezell extended additional coverage to other persons using the car with Ezell’s permission.
In the instant case plaintiff filed his affidavit for garnishment alleging that in the original proceedings a judgment was rendered in favor of Helen Hinchy McNamara, administratrix, against Pallaseh for the sum of $5,000; that an execution was issued against Pallaseh and returned nulla bona; that plaintiff believes that the defendant is indebted to Pallaseh. Plaintiff also filed certain interrogatories directed to the garnishee (defendant). In its answer to the interrogatories the defendant denied that it had money or property in its possession due Paul R. Pallaseh, denied that it rendered any defense to Pallaseh in the original proceedings, and denied that Pallaseh at the time of the accident was driving the car with the permission of Ezell.
Afterwards the defendant filed an amended and additional answer averring in substance that the policy provided that if claim was made or suit was brought against the insured, that such insured should immediately forward to the defendant company every demand, notice, summons, or other process received by him or his representative; that Pallaseh did not forward the summons at any time to the defendant; that the policy contained a limitation which excluded from coverage (