{
  "id": 5377172,
  "name": "Martha Sue Sommer, a Minor, by Dorothy Sommer, her Mother and Next Friend, Plaintiff-Appellee, v. Eugene G. Schuett, Defendant-Appellee-(Constitutional Preferred Mutual Insurance Company, Garnishee-Appellant.)",
  "name_abbreviation": "Sommer v. Schuett",
  "decision_date": "1974-07-12",
  "docket_number": "No. 58461",
  "first_page": "523",
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  "last_updated": "2023-07-14T15:11:03.342046+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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    "judges": [],
    "parties": [
      "Martha Sue Sommer, a Minor, by Dorothy Sommer, her Mother and Next Friend, Plaintiff-Appellee, v. Eugene G. Schuett, Defendant-Appellee\u2014(Constitutional Preferred Mutual Insurance Company, Garnishee-Appellant.)"
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE DRUCKER\ndelivered the opinion of the court:\nThis is a garnishment proceeding brought by plaintiff against garnishee, the insurance carrier of Eugene Schuett. A default judgment in favor of plaintiff and against Schuett had been entered in the amount of $7500. Garnishee denied liability on the ground that Schuett never notified it that there was a pending action as was required by the insurance policy. The trial court, sitting without a jury, found for plaintiff. On appeal garnishee contends that the judgment entered below is either so contrary to the evidence that we must reverse and enter judgment in its favor or, at the least, remand for a new trial.\nOn August 19, 1968, plaintiff filed a complaint for personal injuries arising out of an automobile accident. A summons and copy of the complaint were served on Schuett, the defendant, in April 1971. On June 2, 1971, the case was called for trial on the regular trial call and dismissed for want of prosecution. Plaintiff petitioned the court to vacate the dismissal. A copy of the petition was sent to Schuett. On June 15, 1971, plaintiff\u2019s petition was allowed and the case was returned to the trial call of the court. On September 30, 1971, a default judgment in the amount of $7500 was entered against Schuett. Plaintiff instituted the instant garnishment proceeding against garnishee, Schuett\u2019s insurance carrier, on January 13, 1972. Garnishee, in denying liability, alleged that the first notice it received of the lawsuit was the service of the garnishment summons, and that the failure of Schuett to notify it of the suit constituted a breach of the insurance policy. It admits that it had received notice of die accident.\nAt trial Mrs. Eugene Schuett testified for plaintiff that she was insured by garnishee. Her husband was using her car at the time of the accident. He received the summons in April 1971. She knew that the summons had to be turned over to garnishee, and she prepared a receipt to be signed by someone employed by garnishee when the summons was j delivered to it.\nEugene Schuett testified for plaintiff that he understood that it was his obligation to turn the summons over to garnishee. On Saturday, April 17, 1971, he took the summons, complaint and receipt and \u201cdrove up Harlem Avenue\u201d until he reached Milwaukee Avenue and then \u2018Track down Milwaukee Avenue to Constitutional Preferred.\u201d The offices were located in the 5600 block of Milwaukee Avenue. Although he could not recall the exact address, it was printed on the card issued with the insurance policy. He could not describe the building nor could he recall whether there were any distinctive markings on it. He went into the building and was met by a receptionist. He could not remember the exact location of her desk. He remembered that she was about 20 years old but could not describe her further. He gave her the summons and asked her to sign the receipt. The receptionist said she would check, came back in a few minutes and said there was nobody who would sign the receipt. He then took the receipt and left.\nEdward Stretch, garnishee\u2019s office manager, testified for garnishee that the office is located at 5618 North Milwaukee Avenue. It is in a one-story dark brick building. Flanking the door are panes of glass bearing the garnishee\u2019s insignia which consists of the letters \u201cCP\u201d beneath a drawing of an eagle. Garnishee\u2019s full name, Constitutional Preferred Mutual Insurance Company, also appears on the windows. April 17, 1971, was a Saturday; garnishee\u2019s office is not open on Saturday. If any employees were present on a Saturday, they would be there at his direction; he did not direct anyone to be at the office on April 17, 1971.\nAnthony Milewski, garnishee\u2019s accounting supervisor, testified that his duties included the issuance of payroll checks. All women employees are required to punch in and out by time clock. If they do not have a time card punched, they do not get paid. No compensation was paid to any employee of garnishee for having worked on April 17, 1971. Time cards for the week ending April 16 and the week ending April 23 were introduced into evidence. There was no time punched for any employee for Saturday, April 17. He also testified that when the insurance policy in question was issued, garnishee\u2019s office was located on Peterson Road.\nDolores Odo testified for garnishee that she is the secretary in charge of processing claims. Any summons or complaint received by the company is directed to her. She did not receive a summons or complaint in the suit of Sommers v. Schuett in April 1971. She was not a garnishee\u2019s office on any Saturday during April 1971.\nThe court, in ruling in favor of plaintiff, stated that the testimony of Schuett impressed him.\nOPINION\nThe sole contention raised on appeal is that insufficient evidence was adduced below to show that Eugene Schuett, pursuant to the terms of the insurance contract, presented to garnishee the complaint and summons which had been served upon him.\nAlthough a court of review is empowered by Supreme Court Rule 366 (Ill. Rev. Stat. 1971, ch. 110A, par. 366) to review questions of fact, this court wiH not disturb a trial court\u2019s finding unless that finding is against the manifest weight of the evidence. (Arakie v. Hatoff, 5 Ill.App. 3d 1073, 284 N.E.2d 703.) The rationale underlying this rule is that \u201c* # # especially where the testimony is contradictory, the trial judge as the trier of fact is in a position superior to a court of review to observe the conduct of the witnesses whHe testifying, to determine their credibility, and to weigh the evidence and determine the preponderance thereof. We may not overturn a judgment merely because we might disagree with it or might, had we been the trier of facts, have come to a different conclusion.\u201d Schulenburg v. Signatrol, Inc., 37 Ill.2d 352, 356, 226 N.E.2d 624.\nIn the case at bar Eugene Schuett testified that he defivered the summons to a receptionist at garnishee\u2019s MHwaulcee Avenue offices on April 17, 1971. Although he could describe neither the exact address of the offices nor the appearance of the building in which they were housed, he was able to detail the route he took to them from his home.\nThe trial court, while taking cognizance of the contradictory evidence introduced by garnishee, explicitly found that he was impressed by Schuett\u2019s testimony and entered judgment in favor of plaintiff. Viewing the evidence in its entirety, we believe that it does not favor garnishee so overwhelmingly that no contrary result could ever stand, and therefore we affirm this judgment. Cf. In re Application of County Collector, 131 Ill.App.2d 509, 266 N.E.2d 383.\nAffirmed.\nSULLIVAN, P. J., and LORENZ, J\u201e concur.",
        "type": "majority",
        "author": "Mr. JUSTICE DRUCKER"
      }
    ],
    "attorneys": [
      "Dalton P. Grief, of Chicago (Ellis R. Rosenzweig, of counsel), for appellant.",
      "Herbert F. Stride, Ltd., of Chicago, for plaintiff-appellee."
    ],
    "corrections": "",
    "head_matter": "Martha Sue Sommer, a Minor, by Dorothy Sommer, her Mother and Next Friend, Plaintiff-Appellee, v. Eugene G. Schuett, Defendant-Appellee\u2014(Constitutional Preferred Mutual Insurance Company, Garnishee-Appellant.)\n(No. 58461;\nFirst District (5th Division)\nJuly 12, 1974.\nDalton P. Grief, of Chicago (Ellis R. Rosenzweig, of counsel), for appellant.\nHerbert F. Stride, Ltd., of Chicago, for plaintiff-appellee."
  },
  "file_name": "0523-01",
  "first_page_order": 547,
  "last_page_order": 550
}