author: MORAN, J. EBERSPACHER, J.

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Donald Heizer, et al., Defendants-Appellees.
    Gen. No. 65-29.
    Fifth District.
    May 13, 1966.
    Rehearing denied June 11, 1966.

      EBERSPACHER, J., dissenting.
    Howard Clotfelter, State’s Attorney of Randolph County, of Chester, Sprague, Bock and Norton, of Belleville, and Conn and Clendenin, of Sparta, for appellant.
    Atchison & Koeneman, of Chester, for appellees.
   MORAN, J.

This is an appeal from an order of the Circuit Court of Randolph County, Illinois, rendering judgment against the plaintiff on its complaint in quo warranto, alleging that the defendants were usurping the office of trustees of a purported public fire protection district known as the Prairie Du Rocher Fire Protection District.

Plaintiff alleges that the district has no legal existence and the defendants justify their trusteeships by denying the plaintiff’s claims and asserting the valid organization of the district.

The Illinois Legislature provided for the organization of such fire districts in chapter 127%, section 21, of the Illinois Revised Statutes. The statute is as follows:

“Whenever any territory is (1) an area of contiguous territory in a county, or in more than one, but in not more than 5 counties; (2) so situated that the destruction by fire of the buildings and other property therein is hazardous to the lives and property of the public; (3) so situated that the acquisition, establishment, maintenance and operation of a fire station or stations, facilities, vehicles, apparatus and equipment for the prevention and control of fire therein will conduce to the promotion and protection of the health, safety, welfare and convenience of the public; (4) so situated that it does not divide any city, village or incorporated town; (5) so situated that such territory contains no territory included in any other fire district, the same may be incorporated as a fire protection district. Such districts may be incorporated under this Act in the manner following:
“Fifty or more of the legal voters resident within the limits of such proposed district, or a majority thereof if less than 100, may petition the county court of the county which contains all or the largest portion of the proposed district to cause the question to be submitted to the legal voters of such proposed district, whether such proposed territory shall be organized as a fire protection district under this Act; such petition shall be addressed to said county court and shall contain a definite description of the boundaries of the territory to be embraced in the proposed district, and the name of such proposed district (and) shall allege facts in support of such organization and incorporation.
“Upon filing any such petition in the office of the county clerk of the county in which such petition is made, it shall be the duty of the county court to fix a time and place for a hearing upon the subject of the petition.
“Notice shall be given by the county court to whom the petition is addressed, or by the county clerk or sheriff of the county in which such petition is made at the order and direction of the county court, of the time and place of the hearing upon the subject of the petition at least 20 days prior thereto by one publication thereof in one or more daily or weekly papers published within the proposed fire protection district (or if no daily or weekly newspaper is published within such proposed fire protection district, then either by one publication thereof in any newspaper of general circulation within said territory or by posting at least ten copies of such notice in such district at least 20 days before such hearing in conspicuous places as far separated from each other as consistently possible), and by mailing a copy of such notice to the mayor or president of the board of trustees of all cities, villages and incorporated towns within such proposed fire protection district.”

A petition was filed, a hearing held, and an election conducted. The plaintiff challenges the organization on several points.

The description of the district is first challenged as inadequate in that the proposed boundaries failed to completely enclose the lands of the proposed district. The description reads:

“Thence Southerly along the west bank of the Kaskaskia River to the point where the Kaskaskia intersects the Mississippi River; thence Northwesterly along the low watermark of the east bank of the Mississippi River to the point of beginning.”

Plaintiff introduced evidence that between the west bank of the Kaskaskia and the low watermark of the Mississippi there was a 75 to 100-yard gap in the boundaries. Several persons familiar with this area testified that the west bank of the Kaskaskia and the low watermark of the Mississippi’s east bank do not intersect. The bank is distinguished from the low watermark or the water’s edge; a bank is a ridge of land or acclivity which borders the watercourse. Marion L. Wills, a qualified surveyor, testified on behalf of the defendant that he would be able to survey the area and locate all its boundaries by interpreting the description as a whole.

Where the area to be incorporated and the boundary lines enclosing it are readily ascertainable by a reading of the whole description, the petition is sufficient to confer jurisdiction upon the county court even though the boundary lines described in the petition are erroneous because they fail to enclose the area sought to be incorporated. Descriptions of municipal boundaries are not construed with the same strictness as are those contained in deeds and contracts, and if the description in a petition to incorporate fairly apprises the public of the property involved, it will be considered sufficient. The law is well settled that boundaries give way to intention when the intention can be known. The People v. Anderson, 398 Ill 480, 76 NE2d 773; People ex rel. Magnuson v. Kramer, 21 Ill2d 392, 172 NE2d 757; People ex rel. Village of Worth v. Ihde, 23 Ill2d 63, 177 NE2d 313, and The People v. Knapp, 28 Ill2d 239, 190 NE2d 774.

Therefore, assuming that the present boundary description is erroneous because it does not completely enclose the proposed district, plaintiff could still not prevail as a reading of the whole description would fairly apprise the public of the property involved. If there were a gap, it would be a sandbar of variable width. It is obvious that it was intended that the district was to be bounded by the Kaskaskia and Mississippi Rivers at the disputed location. Since it may readily be seen what lands were intended to be comprised within the boundaries of the proposed district and since the area in which the corporation has power is clear, the description of the Prairie Du Rocher Fire District is adequate.

The words, “shall contain a definite description of the boundaries of the territory to be embraced in the proposed district,” must be read in context with the legislative purpose of the Act which is “for the prevention and control of fire therein.” Therefore, since the territory of the proposed district is contiguous, since it does not contain territory previously included in another fire district, and since the boundaries are so located as to effectuate the objective of the Act, namely the prevention and control of fires therein, it is a “definite description of the boundaries” within the meaning of the statute. People ex rel. Armstrong v. Huggins, 407 Ill 157, 94 NE2d 863.

The plaintiff’s second challenge to the district’s legal existence is that the description of the district includes land situated in the State of Missouri, to wit: land commonly known as Turkey Island. Defendants admit this allegation by stipulation but deny that this has any effect on the legal existence of the district.

Appellants urge that the petition in this class of case is jurisdictional; and, when it contains lands not properly includable, it is fatally defective. People ex rel. Cadwell v. McDonald, 208 Ill 638, 70 NE 646. In this case a petition was defective because it failed to meet the statutory requirement that the petition include all lands to be benefited by the new ditch. The principal and key failing, therefore, was not an inclusion of lands not properly includable, but an exclusion of lands which specifically could not be excluded.

In People ex rel. Goldsbery v. Zoller, 337 Ill 362, 169 NE 288, the court decided that the petition was defective because it included lands not properly includable after it had found the petition defective for want of proper notice. The court in deciding what it did not have to, relied upon Soldier Creek Drainage & Sanitary Dist. v. Illinois Cent. R. Co., 323 Ill 350, 154 NE 153, which is also cited in People ex rel. Fitton v. Ehler, 338 Ill 67, 170 NE 1. An examination of Soldier Creek Drainage & Sanitary Dist. v. Illinois Cent. R. Co., supra, shows that here also the court decided that a petition which included land not properly includable was defective after deciding it was already defective for other reasons. This case, in deciding what it need not have, relied upon People ex rel. Smerdon v. Crews, 245 Ill 318, 92 NE 45, and People ex rel. Bancroft v. Lease, 248 Ill 187, 93 NE 783. These final concluding cases are both ultimately founded on the principle that there cannot be two municipal corporations in the same area with the same purpose. See McQuillin, Mun Corp, § 7.09, p 269. This ultimate reason does not seem sufficient to decree the petition defective, when there is no overlap of similar municipal powers resulting from an erroneous inclusion of Missouri land. The lands are not properly includable for different reasons. As appellants point out, this order could not possibly affect Missouri land, whereas it could affect Illinois land and would have, were it not for a jurisdictional statutory prohibition against in-including lands in another fire district. This prohibition being based on the doctrine against similar municipal corporations in the same area is, in turn, based on a desire to avoid confusion and promote efficiency. (See McQuillin, Mun Corp, supra, § 7.08.) The inclusion of the Missouri land presents no confusion; the order can have no effect on the island (or its people if, indeed, it is inhabited).

In People v. Knapp, 28 Ill2d 239, 190 NE2d 774, it was contended that the petition to incorporate the City of Crest Hill was fatally defective because the description of the territory included a small piece within the city limits of Joliet. The court said at pages 244, 245:

“We do not think the mere fact that this small sliver of land was inadvertently included is enough to invalidate the incorporation proceedings. While the statute contemplates that the territory to be incorporated will not be already incorporated, it does not require either expressly or by necessary implication the result sought by the plaintiffs in this case. It deals with practical matters and must be given a practical, common-sense construction. The strip in question lies wholly within and is a part of a public thoroughfare which will be used by the general public indiscriminately with the balance of the street. Under these circumstances the overlap is de minimus and will not be considered.”

We believe that the statute governing the organization of fire districts also “deals with practical matters and must be given a practical, common-sense construction.”

If de minimus can be applied where the court’s action could affect Illinois land, it seems much more logical to apply it where the court’s action cannot have any effect on the Missouri land.

Plaintiff’s third and final challenge to the organization of the district is that the record of the organizational proceedings does not show the required written notice, although properly published, was mailed to the president of the Village of Prairie Du Rocher. The defendants answer that the president of the village trustees, as well as other officers of the village, was a signer of the organization petition and had actual notice of the hearing. The defendants further urge that only the village and not the present plaintiff can complain of this failure to give notice.

Plaintiff relies strongly on the case of People ex rel. Goldsbery v. Zoller, supra, to show that the failure to mail the notice to the president of the village board of trustees precluded the county court’s having jurisdiction over the persons. The Goldsbery case is not in point. That case dealt with a statute which required ten notices to be posted within the proposed district. Nine notices were actually posted within the district, and one was posted just outside the district. The court held that having failed to post the ten required notices within the district, the notice requirement of the statute had not been met, and therefore no proper notice had been given to anyone in the district. It cannot be contended in the case before this court that the notice given by publication failed to give notice to all persons within the district. The published notice clearly gave the County Court of Randolph County jurisdiction over all persons located in the district and specifically jurisdiction over the relators in this proceeding. The Village of Prairie Du Rocher has not objected to the formation of the Prairie Du Rocher Fire Protection District.

The obvious purpose of the statute requiring notice be given to a municipality is to give such municipality an opportunity to object to the formation of the district. However, the right to object, if such a right exists at all, by collateral proceedings, is strictly limited to that person who failed to receive the notice, and no one else. The County Court of Randolph County had jurisdiction over the persons of the relators and other persons residing within the district and had jurisdiction of the subject matter. Consequently, its orders are binding upon the relators, and those orders may not be collaterally attacked in this proceeding.

In People ex rel. Fitton v. Ehler, supra, the validity of the district was attacked on the grounds that the county court had failed to acquire jurisdiction of the person of one Mary T. Fitton. Her land had been excluded from the final order incorporating the district. Thereafter, her land was annexed to the territory and it was alleged that it was done for the purpose of evading the statute and defeating the lawful rights of Mary T. Fitton. The court said at page 79: “The county court had jurisdiction of the subject matter. If it had not jurisdiction of the person of Mary Fitton the order of organization would be void as to her. As to every other land owner it would be valid.”

The Commissioners of Sny Island Levee Drain. Dist. v. Shaw, 252 Ill 142, 96 NE 984, involved a writ of error on an assessment proceeding, wherein resident taxpayers were complaining of defective notice to nonresident landowners under the Levee Act, the court refused to allow the resident landowners to complain of defects in the “proceedings or rulings of the court which only affect other parties to the proceedings.” Those landowners who were allegedly added illegally were not objecting.

In our opinion, notice, especially actual notice which the statute required be given the village, is limited in its effect. The harm done, if any, goes only to the unnotified party, not to the entirety.

In addition, the record shows that the President of the Board of Trustees of the Village of Prairie Du Roeher was instrumental in the formation of the Prairie Du Roeher Fire District; that he signed the petition for the organization of the district; that the petition was presented at a regular meeting of the village board of trustees and six members of the board of trustees and village clerk signed it at that time; that he saw a copy of the notice of hearing on the petition prior to its publication and that the attorney for the Village of Prairie Du Roeher conducted the legal proceedings to form the Prairie Du Roeher Fire District at the request of the Prairie Du Roeher village officials.

For the foregoing reasons, the judgment of the Circuit Court of Randolph County is affirmed.

Judgment affirmed.

GOLDENHERSH, J., concurs.

Dissenting Opinion

EBERSPACHER, J.

All three of plaintiff’s challenges go to the power of the court to enter the order creating the Prairie Du Rocher Fire Protection District.

As is true in the case of the creation of any municipal corporation, the constitutional power to create the district lay in the General Assembly, and that power has been delegated to the court, which derived its jurisdiction from the statute alone. The court had no inherent powers, and no presumption arises to support its action in any particular. The conditions of the statute authorizing the creation of the fire protection district must have been complied with in the manner prescribed by statute, else the court was without jurisdiction. People ex rel. Moran v. Teolis, 20 Ill2d 95, 169 NE2d 232; People ex rel. Goldsbery v. Zoller, 337 Ill 362, 169 NE 228; People ex rel. County of DuPage v. Lowe, et al., 67 Ill App2d 369, 214 NE2d 593.

Likewise, unless the petition to organize the district met the statutory requirements, both as to containing “a definite description of the boundaries” and as to including only territory which met all the qualifications of the statute, it was defective. The petition was jurisdictional, and when it was defective, the resulting district was not legally organized. People ex rel. Cadwell v. McDonald, 208 Ill 638, 70 NE 646; People ex rel. Goldsbery v. Zoller, supra.

The case of People ex rel. Armstrong v. Huggins, 407 Ill 157, 94 NE2d 863, only held that the Fire Protection District Act was constitutional; it did not pass on the adequacy of the description of boundaries of any district, nor did it hold that any requirements of the Act could be overlooked so long as the proposed territory was contiguous and not included in any other fire district; and neither did it hold that the formation of a district within the spirit, object, and meaning of the Act was sufficient, without statutory compliance.

Compliance within the spirit, object and meaning of the Act, is not enough, when the statute has not been complied with. A plea of justification in an action of quo warranto must allege the existence and performance of all of the conditions precedent to the defendant’s right to exercise the privilege of office. People ex rel. County of DuPage v. Lowe, et al., supra; Greening ex rel. Rowe v. Barnes, 355 Ill 99, 188 NE 805.

Here plaintiffs by their reply contended that a part of the territory included in the original petition and order organizing the district was in Missouri and introduced into evidence a series of exhibits consisting of records of the General Land Office, plats and surveys, showing a part of the territory to be in Missouri. The burden of justification was on the defendants and there is nothing in the record to show that Turkey Island was in Illinois, even if we choose to disregard the stipulation that it was in Missouri.

In People v. Knapp, 28 Ill2d 239, 190 NE2d 774, a strip six or seven feet in width and approximately 250 feet long violated the statutory requirement because when territory was disconnected from Joliet this strip was inadvertently not included, and our Supreme Court held the statute was to be given a common-sense construction, and held the overlap to be de minimus and not to be considered. To me there is a substantial difference between such a sliver and a tract of some 20 acres over which neither the General Assembly nor the court could conceivably have any jurisdiction, and the very fact that the order could have no effect on the island points up to the jurisdictional defect in the petition.

Despite the fact that the statute deals with practical matters and must be given a practical, common-sense construction, there is some point that the error is so manifest, or of such a nature, that it cannot be said that the General Assembly intended the court to have power to act on a defective petition. When the petition and order includes territory that so obviously fails to meet the statutory requirement, and over which neither the General Assembly nor the court has any constitutional or inherent power to act, it would seem that such point had been reached.

The General Assembly prescribed that in addition to notice by publication, notice should be given by mailing to the President of the Village Board. Here along with the delegation of power the General Assembly set out what was due process. They felt that since villages also had power to control fires under the Cities and Villages Act that Villages and Cities should be given special notice. Giving of the statutorily prescribed notice was essential to the court’s jurisdiction, and the President of the Village Board had no power, by any Act or means whatever, to waive the statutory requirement. The fact that he and members of the Village Board were active in the formation makes no difference, because they were only acting personally, because a Village has no statutory authority to form a fire district, even though it may furnish fire protection, see Lafferty v. Feicke, 252 Ill 414, 96 NE 1052, and the attempt to circumvent it in Brown v. Jones, 254 Ill 521, 98 NE 962. The principles enunciated in those two cases are not peculiar to school districts, they are common to all cases involving a delegation of legislative authority. As in McCarthy v. City of Chicago, 312 Ill App 268, 38 NE2d 519, the giving of the notice was essential and could not be waived by its officers, acting either officially or individually. In Tennessee Drain. Dist. v. Maye, 258 Ill 296, 101 NE 580, no property owners filed objection in the court below, the district organization was fatally defective as to all property owners not waiving the defect in the court below; here the Village could not and did not waive the defect. In a quo warranto proceeding a plea of justification by defendants must show the proceedings by which the district was organized and this can be done only by the record. The jurisdiction of the court could only be shown by its record and that record is the only lawful evidence of the action taken, and cannot be contradicted, added to or supplemented by parol. People ex rel. King v. North Fork Outlet Drain. Dist., 331 Ill 68, 162 NE 184. As a result, the testimony of the Village President and the Village Attorney was not competent, in the face of the objections made by plaintiff.

The Fitton case, 338 Ill 67,107 NE 1, I do not consider applicable on this point, because the rule is different as to municipal corporations (in this case the Village). Nothing it or its officers did could effect the jurisdiction given the court by the General Assembly, and notice of the officers in their individual capacity is not notice to the village required by the statute. In the Fit-ton case, the court held that annexing her land, which was included in the petition but left out of the order because to include it in the order would have deprived the court of jurisdiction since they had no jurisdiction of her person, “vitiated the entire proceedings.” Here the Village was not subsequently brought in, and nothing occurred to vitiate the proceedings.

I consider the case of People ex rel. Goldsbery v. Zoller, supra, squarely in point. In cases of this kind, it is not because the people did not get notice; it is because the statute, which delegated the authority of the court to act, has not been complied with, therefore the court had no authority. In the Zoller case that nine notices posted inside the district and the tenth just outside, did not give actual notice was not contended, but “the notice requirement of the statute had not been met, and therefore no proper notice had been given to anyone in the district.” The notice required by the statute was the process by which the court acquired jurisdiction, not only of person and territory, but the power to act in reference to the creation of a fire district.

I would, therefore, reverse the judgment.

       Since this is actually a stipulation as to where the western boundary of the State of Illinois is at this point, it is a stipulation of law and not binding on this court. National Bank of Colchester v. Murphy, 384 Ill 61, 50 NE2d 748. However, we do not pass on this question because in our opinion even if the land in question were erroneously included, it would not affect the legal existence of the district.


source: Caselaw Access Project

author: ALLOY, J.

license: Public Domain

text:
    Viola Palmer and Clyde Palmer, a Minor, by Viola Palmer, His Mother and Next Friend, Plaintiffs-Appellees, v. Stewart V. Sunberg, Defendant-Appellee, and The Farmers Automobile Insurance Association, Garnishee-Appellant.
    Gen. No. 65-77.
    Third District.
    May 17, 1966.
    Rehearing denied June 29, 1966.

      Stuart R. Lefstein, of Rock Island, for appellant.
    Thomas F. Railsback, of Moline, Lane & Waterman, of Davenport, Iowa, and William Schroder, Jr., of Rock Island, for appellees.
   ALLOY, J.

In the cause before us the original action was instituted by plaintiffs Viola Palmer and Clyde Palmer, a minor, by Viola Palmer, his mother and next friend, to recover damages resulting from alleged negligence of defendant, Stewart V. Sunberg in driving a certain automobile. The defendant’s insurer, The Farmers Automobile Insurance Association, garnishee-appellant in this cause refused to defend. It appeared that at the time of the accident in question, defendant Stewart V. Sun-berg owned title to three automobiles, a 1952 Pontiac Station Wagon, a 1955 Ford, which Sunberg had acquired about 21 days before the accident, and a 1956 Chevrolet, which was specifically described in the automobile liability insurance policy issued by the garnishee company.

The 1955 Ford involved in the accident was considered an “owned automobile” within the meaning of the policy since it had been acquired by Sunberg and notice was given the insurance company of such acquisition within the thirty-day period as set forth in the policy. The policy provided, as is customary in such policies, that it covered only “owned automobiles,” which are defined as automobiles described in the policy or acquired subsequent to the issuance of the policy, if, at the time the automobile was acquired, all other passenger automobiles owned by the named insured were insured with the garnishee. It was the contention of the insurance company that the 1955 Ford was acquired subsequent to the date of the policy, at a time when the 1952 Pontiac automobile was “owned” by the named insured and was not insured with the garnishee. As previously indicated, the garnishee-insurance company declined to defend and a default judgment was entered as against defendant Sunberg.

In the trial of the issues with which we are now concerned, the trial court was required to determine, first, whether or not the 1952 Pontiac was to be considered an “owned automobile.” Although there was evidence tending to show that the automobile was no longer being used as such but was considered as “junk” and being used for storage alone, the trial court held that such automobile was an “owned automobile.” We are not concerned with this issue on review. The trial court, however, found specifically that the claim of coverage by Sunberg was neither fraudulent nor frivolous and that there was a possibility that such 1952 Pontiac could have been considered as a nonowned automobile.

The trial court, on the basic issue presented to this court, found that the garnishee-insurance company did in fact breach its duty to defend Sunberg under the policy and that the finding that the 1952 Pontiac was an “owned automobile” was not determinative of garnishee’s liability in this case. It was pointed out that upon notification of the accident, the insurer evidently made an investigation and refused to defend the insured; that it was willing to accept the risks attendant upon such refusal. The court also pointed out that after the insured was defaulted, the insurer was given an additional opportunity to participate in the hearing and protect itself and the insured on the amount of damages which would be assessed. The court observed that from the record it appeared that the garnishee-insurance company elected to treat its obligation to defend Sunberg and its ultimate liability under the policy as one and the same duty. The court concluded that these are not only distinct liabilities but are determined by separate circumstances; that the policy liability, if not negatived by allegations of the complaint, is determined by facts developed extraneous to the demand made against the insured, while the duty to defend is dependent solely upon the allegations of the complaint.

On appeal in this court, the garnishee-appellant asserts that the court below, having concluded that there was no coverage, erred in holding that there was nevertheless a duty to defend. In support of this conclusion, it is asserted that the court erred in holding that there must be a defense as long as the facts of coverage are not negatived in the complaint and that the rule imposing an obligation to defend should be limited to those cases where the facts determining coverage are also material issues in the original injury lawsuit. It is also asserted that the court erred in holding that a declaratory judgment suit was a proper action for litigating the duty of defense but that a garnishment proceeding after judgment was not.

In Sims v. Illinois Nat. Cas. Co. of Springfield, 43 Ill App2d 184, 193 NE2d 123, the Appellate Court was confronted with a similar situation. In that case, the insurance company was involved in a garnishment action. It raised as a defense that no coverage was afforded where the injured party was an employee of the insured while such employee was engaged in employment. Plaintiff in that case was in fact an employee of the driver of the vehicle. The complaint, however, did not specify an employer-employee relationship but simply stated that the individual was riding as a “passenger” and alleged that the defendant in that case was negligent in the operation of the vehicle. The company insuring the defendant operator of the vehicle refused to defend the operator of the vehicle, Sims, and he was required to obtain his own counsel, who answered the complaint. Judgment was entered on a verdict in that case as against Sims. The court there pointed out, in an exhaustive opinion, that the insurance company is bound by the terms of the policy to defend the insured against all actions which are brought against him which are based on the allegations in such action within the coverage of the policy even if the allegations of the suit are groundless, false or fraudulent. The court observed that the obligation of the insurance company under such policy provisions required it to defend an action brought against the insured by a third party and that such obligation is determined by the allegations of the complaint in such action. It was also pointed out that the complaint did not show an employer-employee relationship which the insurance company sought to use as a basis for denying coverage. The Appellate Court concluded that if there is potentially a case under which liability might be established within the coverage of the policy, the insurance company is required to defend.

It was pointed out in the Sims case (with reference to an exhaustive annotation in 50 ALR2d 458) that the rule is well settled that, generally speaking, the obligation of a liability insurance company under a policy provision requiring it to defend an action brought against the insured by a third party, is to be determined by the allegations of the complaint in such action, and that the insurer’s ultimate liability under the policy of insurance is not the criterion to be followed in determining whether or not there exists a duty to defend. It is pointed out in that annotation that the contention is quite frequently made by insurance companies to the effect that the insurer’s obligation to defend is limited to cases establishing ultimate liability of the insurer to indemnify the insured, and does not insure unsuccessful or groundless suits. It is stated that this is not a sound contention and that the duty to defend does not depend upon the insurer’s liability to pay. As stated in Sims v. Illinois Nat. Cas. Co. of Springfield, supra, at page 192:

“Thus, according to the foregoing, the generally recognized doctrine is that the insurer is under a duty to defend a suit against an insured where the petition or complaint in such suit alleges a state of facts within the coverage of the policy. And while there is some conflict of authority, the majority of decisions of the courts which have passed on the question adhere to the general rule even though the insurer’s investigation discloses a conflict between the allegations of the complaint and the actual facts as known to or ascertainable by the insurer. Typical of the latter cases is Lee v. Aetna Cas. & Surety Co., 178 F2d 750 (NY) where the court said:
“This language means that the insurer will defend the suit, if the injured party states a claim, which, qua claim, is for an injury “covered” by the policy; . . . and it is irrelevant that the insurer may get information from the insured, or from anyone else, which indicates, or even demonstrates, that the injury is not in fact “covered.” ’
“Applying the foregoing to the allegations of the original complaint in the case at bar it is to be noted at the outset that it is our opinion that Ruark’s complaint against Sims stated a cause of action. It alleged that Ruark was a ‘passenger’ in Sims’ motor vehicle and that Sims was negligent and that he, Ruark, was exercising due care for his own safety. There is nothing in these allegations that would suggest an exclusion from coverage under the policy. It may be argued that by the same token these allegations do not negative the possibility that Ruark might be a passenger in the motor vehicle and at the same time be an employee of Sims engaged in his employment. Even in such a situation the insurer is obligated to defend if there is, potentially, a case under the complaint within the coverage of the policy.”

The conclusion of the court that the duty to defend and the duty to indemnify are separate and distinct is clearly established by other precedents cited in the Sims case which we need not repeat at length in this opinion.

It is suggested by appellant in this court, on the precedent of Allstate Ins. Co. v. Gleason, 50 Ill App 2d 207, 200 NE2d 383, and Gould v. Country Mut. Cas. Co., 37 Ill App2d 265, 185 NE2d 603, that the rule expressed in the Sims case hereinabove referred to, be limited to those cases where facts of coverage are also a material issue in the original injury lawsuit. In this connection, appellant also refers to the case of Brodek v. Indemnity Ins. Co. of North America, 292 Ill App 363, 11 NE2d 228, in support of its contention that no duty existed to defend the insured Sunberg. We do not view the Brodek case as a precedent supporting the contention of appellant since in that case the allegations of the complaint (declaration) made it evident that no coverage was afforded under the policy. As stated in the Brodek case, at page 384:

“If a plaintiff alleges in his pleadings that he is entitled to recover upon a ground of liability covered by the policy, then of course the defendant’s insurance carrier must defend the suit; it cannot avoid that duty by determining upon its own investigation that the ground of liability alleged cannot be substantiated. If the suit is without merit it is the duty of the insurer to defend and demonstrate that fact to the court or jury.”

The court in that case concluded that by looking at the allegations of the declaration, it was evident that no coverage was afforded under the policy.

Similarly, in Allstate Ins. Co. v. Gleason, 50 Ill App2d 207, 200 NE2d 383, the court reiterated that the obligation of an insurer to defend an action brought against its insured is determined by the allegations of the pleading and the insurer’s obligation to defend does not depend upon the ultimate outcome of the action. The lower court’s declaratory judgment finding on the agency question was premature. The court, however, found that the insurance carrier had a duty to defend. Likewise, Gould v. Country Mut. Cas. Co., 37 Ill App2d 265, 185 NE2d 603, is not a precedent supporting appellant in the instant case. In the Gould case, the insured brought an action against the insurer to recover the amount of a judgment rendered against him which the insurer had refused to defend. The court held that the insurer was conclusively bound by the finding of the judgment in the original action against the insured which the insurer refused to defend, and that the insurer was not entitled to litigate its contention that the insured had perpetrated a criminal act causing death which was within the policy exclusion. The court found that the insurer had breached its duty to defend and under such circumstances, where the insurer wrongfully refuses to defend on the ground that the claim against the insured is not within the coverage of the policy, the insurer is guilty of a breach of contract which renders it liable to the insured for all damages assessed against him as a result of such breach.

On the basis of the precedents, the conclusion of the trial court that there existed a duty on the part of the Farmers Automobile Insurance Company to defend the insured Sunberg was proper. Since the insurer breached its contract by refusing to tender a defense to Sunberg, the court concluded the insurer is now es-topped from asserting an exclusion under the policy as a defense to coverage and is liable for the judgment rendered against its insured. This is consistent with the conclusion of the court in Sims v. Illinois Nat. Cas. Co., supra, where the court stated, at page 194:

“The next question that presents itself is — what are the consequences of such a breach of contract ? Here again the general rule is stated in 7 Am Jur2d Automobile Ins, Sec 167, as follows:
“ ‘By its unjustified refusal to defend an action against the insured, an automobile liability insurer becomes subject to the following new and positive obligations: (1) liability for the amount of the judgment rendered against the insured or of the settlement made by him; (2) liability for the expenses incurred by the insured in defending the suit; (3) liability for any additional damage traceable to its refusal to defend.
“ ‘The first and most obvious of these positive obligations created by an insurer’s unjustified refusal to defend is its obligation to pay the amount of the judgment rendered against the insured or of any settlement made by the insured of the action brought against him by the injured party.’
“. . . The insurer has no right to insist that the insured be bound by the provisions of the insurance contract inuring to its benefit, i. e., the ‘Exclusions’ provisions, when it has already breached the contract by violating the provisions inuring to the benefit of the insured, i. e., the defense provisions. In this sense it may properly be said to be estopped.”

In the memorandum opinion in this cause, the trial court specifically found that Sunberg’s claim for coverage was neither fraudulent nor frivolous and that there was, in fact, a possibility, based on the record before the court, that the 1952 Pontiac could have been judicially construed as a nonowned automobile. The trial court followed the precedent of Sims v. Illinois Nat. Cas. Co. of Springfield, supra, where the court stated at page 199:

“In passing it might appear that the result reached announces a harsh rule so far as insurers are concerned. However, all authorities agree that quite often an insurer is faced with a dilemma as to whether to defend or to refuse to defend. In cases of doubt the answer is simple. It can (1) seek a declaratory judgment as to its obligations and rights or (2) defend under a reservation of rights.”

We, therefore, conclude that the trial court properly determined that the garnishee-appellant, by willfully refusing to defend the insured, under the facts in the record, had breached its contract and thereby rendered itself liable for the judgment entered against its insured.

The judgment of the Circuit Court of Rock Island County will, therefore, be affirmed.

Affirmed.

CORYN, P. J. and STOUDER, J., concur.


author: GOLDENHERSH, P. J. MORAN, J.

text:
    Harry Wade, Plaintiff-Appellant, v. Granite City Community Unit School District, No. 9, Madison County, Defendant-Appellee.
    Gen. No. 65-17.
    Fifth District.
    May 17, 1966.
    Rehearing denied June 14, 1966.
    MORAN, J., dissenting.

      Burton C. Bernard, of Granite City, and John Ligtenberg, of Chicago, for appellant.
    Maurice Dailey, of Granite City, for appellee.
   GOLDENHERSH, P. J.

Plaintiff appeals from the judgment of the Circuit Court of Madison County. Since the judgment was entered on the pleadings, the pleadings will be reviewed.

Plaintiff’s amended complaint states that plaintiff is a resident of Granite City, holds Bachelor of Science and Master of Arts degrees from St. Louis University, and has been employed by defendant as an elementary school teacher for a probationary period of two consecutive school terms, the second of which was completed on June 7, 1963. Plaintiff alleges further that defendant, acting pursuant to the provisions of chapter 122, section 24-11, Ill Rev Stats 1961, informed plaintiff, by registered letter dated March 28, 1963, that his employment as a teacher would not be continued after the close of the current school year, i. e., after June 7, 1963. The letter stated “The reason for termination of your employment is that your present certificate does not meet the requirements of the school district for the fulfillment of your present position.” The amended complaint alleges that the written notice did not comply with the requirements of section 24-11 (supra) which provides: “Any teacher who has been employed in any district as a full time teacher for a probationary period of two consecutive school terms shall enter upon contractual continued service unless given written notice of dismissal stating the specific reason therefor, by registered mail by the employing board at least 60 days before the end of such period.” Plaintiff further alleges that he acquired tenure status as of June 7, 1963, and that despite his written request, defendant has refused to employ him during the school year which commenced in September 1963. He alleges the existence of an actual controversy and prays for a declaratory judgment. (Ill Rev Stats 1961, c 110, § 57-1).

Defendant’s answer to the amended complaint admits plaintiff was employed by defendant, admits the giving of notice as alleged, and denies plaintiff acquired tenure status.

Plaintiff moved for judgment on the pleadings, the circuit court considered the motion, found that the notice was a valid notice of dismissal, that plaintiff had not acquired tenure status under the provisions of section 24-11, entered judgment for defendant, and this appeal followed.

The sole question presented by the pleadings is whether the notice given by means of the letter of March 28, 1963, complies with the provisions of section 24-11.

In Donahoo v. Board of Education of School Dist. No. 303, 413 Ill 422, 109 NE2d 787, the Supreme Court held that the giving of a specific reason for dismissal is mandatory, but counsel have not cited, nor has this court found, any Illinois cases in which the term “specific reason” is defined. We define it to mean that it must fairly apprise the teacher of the alleged deficiency upon which the employer-school board bases its action, and with sufficient specificity to enable the teacher to refute the charge.

The notice given plaintiff advised him that his employment was being terminated because his certificate did not meet the defendant school district’s requirements for the fulfillment of his present position. This created a single issue, either plaintiff’s certificate met the district’s requirements, or it did not. Plaintiff makes no issue of whether his certificate, in fact, met the requirements of the school district, whether the requirements were established by prior appropriate action of the school board, and if so established, whether they were reasonable.

In our opinion the reason given in the notice was sufficiently specific to meet the statutory requirement and the judgment of the Circuit Court of Madison County is affirmed.

Judgment affirmed.

EBERSPACHER, J., concurs.

Dissenting Opinion

MORAN, J.

I cannot believe that the legislature intended that a probationary teacher’s employment could be terminated by a school board for the nebulous reason given the appellant. Section 24-11 of chapter 122, Illinois Revised Statutes, 1961, provides that the probationary teacher is entitled to a specific reason for his dismissal. A reason that is not specific is equivalent to no reason. The reason given for appellant’s discharge, in my opinion, was not only not specific but was vague, uncertain and indistinct.

I challenge anyone reading this record or the majority opinion to know why appellant was discharged. He was told by letter that his certificate did not “meet the requirements of the school board for the fulfillment of your present position.” One could not know the reason appellant was being discharged unless he knew what the requirements of the school district were for appellant’s present position. Were the requirements in writing? Were there few or many? If there were many, should not the school board be required to point out which of their many requirements his certificate did not comply with? In Donahoo v. Board of Education of School Dist. No. 303, 413 Ill 422, 109 NE2d 787, our Supreme Court said at 426:

“. . . It is our opinion that the provision for the giving of the specific reason for dismissal in said section 24-2 is mandatory and that such notice, containing no reason, fails to comply with the statute.
“In this case, while the notice was in the negative, ‘your school contract . . . will not be renewed,’ it must be construed as a dismissal, but it is entirely devoid of any reason therefor, specific or otherwise. There are many reasons why the legislature included the provision in section 24-2 providing for reasons for dismissal in writing. A board would not so readily dismiss when its reasons therefor will be submitted to the bar of public opinion. Such a statement would give the teacher a chance to know his weaknesses and try to correct. Arbitrary dismissal without a reason assigned therefor might tend to undermine morale of the other members of the teaching staff.
“The notice of dismissal was insufficient in that no specific reason therefor was assigned, as required by the statute, and upon the completion of the second term plaintiff acquired contractual continued service.”

In my opinion, the language of Donahoo is pertinent to the present case because the reason given for appellant’s discharge was so vague and indefinite as to constitute no reason.

In Hutchison v. Board of Education of Greenfield Community Unit School Dist. No. 10, 32 Ill App2d 247, 177 NE2d 420, the teacher was served a statement that he was being discharged for “failure to effectively perform and carry out your instructional duties.” The court in that case said at page 250:

“. . . We think such a vague accusation was wholly insufficient to qualify as a specific charge within the meaning of the Tenure Law. If plaintiff was being dismissed because he refused or neglected to perform certain duties, then he had a right to be informed specifically as to the particular duties alleged to have been breached. Furthermore, if the charges related to a cause which was remediable, then plaintiff should have been given an opportunity to remedy such cause. If plaintiff was not entitled to specific information as to wherein he had failed as a teacher, then the provisions concerning remediable causes would be meaningless.”

In my opinion, the notice given in Hutchison was more specific than that given to Wade. Assuming that there was a requirement of the school board which Wade’s certificate did not comply with, what if that requirement was as vague as “failure to effectively perform and carry out your instructional duties?”


author: MR. PRESIDING JUSTICE BRYANT BURKE, J.,

text:
    John Hamilton, Individually and as Administrator of the Estate of Virginia C. Hamilton, Deceased, and Roy A. Sanor, Jr., as Father and Next Friend of Victoria Sanor, a Minor, Plaintiffs-Appellants, v. Family Record Plan, Inc., a Corporation, and Michael T. Logullo, Defendants-Appellees.
    Gen. No. 50,483.
    First District, Second Division.
    May 17, 1966.
    Rehearing denied June 7, 1966.

      BURKE, J., dissenting.
    B. John Mix, Jr., Richard Lewin, David Linn and Abrams, Linn and Mix, of Chicago, for appellants.
    Berchem, Schwantes & Thuma, of Chicago (Michael J. Thuma, of counsel), for Family Record Plan, Inc., appellee; no appearance made for Michael T. Logullo, appellee.
   MR. PRESIDING JUSTICE BRYANT

delivered the opinion of the court.

This appeal comes from a judgment order entered December 23, 1964, granting the post-trial motion of the defendants for a judgment notwithstanding the verdict. The defendant below, Family Record Plan, has filed an appearance in this court; Michael T. Logullo, also a defendant below, has not filed an appearance in this appeal.

This action was brought by John Hamilton, individually and as the administrator of the estate of Virginia C. Hamilton, his deceased wife, and by Roy A. Sanor, Jr. as father and next friend of Victoria Sanor, a minor. Roy A. Sanor is the son-in-law of John Hamilton, Victoria Sanor being, therefore, the granddaughter of John Hamilton.

The evidence shows that John Hamilton, his wife, Virginia, and their granddaughter Victoria, were driving on the way downtown when they were involved in an automobile accident with the defendant Michael T. Logullo. John Hamilton and Victoria Sanor were injured; Virginia Hamilton was killed. The testimony of John Hamilton concerning this occurrence is abstracted as follows:

“As I approached the intersection of 86 and Euclid, I was proceeding in an Easterly direction. In the block prior to the intersection, the speed of my automobile was less than 25 miles an hour. I slowed the car down as we approached the intersection and I looked to the right and I looked to the left, and by that time we started into the intersection; and I looked to the right and then looked ahead. I saw no cross-traffic coming at that time. My speed as I passed through the intersection was less than twenty miles an hour.

“When I was in the intersection a ear hit me in the right front of the right front door.

“86th Street is two ways. With respect to an imaginary center line on 86th Street, ... I was to the right of the center line. I was on the right-hand side of the street. Euclid Avenue is a two-way street. I saw this automobile just before he struck me. He was on the right-hand side of Euclid.”

On cross-examination he testified, “[At the time I entered the intersection] I could see down Euclid Avenue 75 to 80 feet. There was something to obstruct my vision. There was a car parked along the West curb. One car — that car obstructed my vision. That car was parked about 30 feet South of 86th Street. 30 feet South of the sidewalk.”

Hamilton said that when the police questioned him about the accident, the following question was asked and he gave this answer:

“Q. Now, go ahead in your own way and tell how the accident happened.

“A. I was driving East on 86th Street approximately 25 miles an hour or less. Approaching Euclid Avenue, I slowed down, saw nothing coming, and my wife said ‘all right,’ so I continued into the intersection. All of a sudden my car was struck and we were all thrown into the street. That’s all.”

This was the only testimony concerning the accident.

The following evidence was adduced concerning the relationship between Michael T. Logullo and the Family Record Plan. In a deposition given in Statesville Penitentiary where he was serving a sentence for armed robbery, Michael T. Logullo testified that his first contact with the Family Record Plan came in 1957 when he was 18 years old. The Family Record Plan dealt with the door-to-door selling of photograph albums for baby pictures. He said he first met Richard Shipley and later, in October of 1957 met Nathan Silvers. Shipley was the field manager for the Family Record Plan, and Silvers was his immediate superior. At this time, Logullo attended a sales meeting which was held in a south side restaurant. Present were Shipley, Silvers, Logullo and about half a dozen other persons including one Allen Curtis whom Logullo had known for about five years. After this and other meetings, Logullo signed an “Independent Contractors” agreement. That agreement provides that the dealer must sell at least one album each week, that the company agrees to lease to the dealer a sales outfit which shall remain the property of the company and which shall be returned to the company by the dealer upon the termination of the contract. The dealer agrees to deposit $15 with the company to be applied as rent for the sales outfit.

Under this contract, the dealer agrees that he will not engage in any unfair trade practice or make false or misleading statements concerning the company or its product and that he will make no agreements, commitments, arrangements or promises to the customer or prospective customer which are not set forth in the order form.

“Fifth: It is expressly acknowledged and agreed that the relationship between the Company and the Dealer is that of independent contractor. As proprietor of his own business the Dealer agrees to comply with all applicable federal, state and local tax, licensing, insurance and other laws. Dealer expressly acknowledges and agrees that as an independent contractor:

“(1) Dealer may apply his time according to his own judgment and discretion.

“(2) Dealer has the right to engage others, without obligation to the Company, to assist Dealer in securing orders and in maintaining his dealership business.

“(3) Nothing in this Agreement shall prohibit the Dealer from engaging in any other business nor restrict him from selling or distributing the products of any other company.”

Logullo then underwent a course of training conducted at the expense of the Family Record Plan. He would meet with Mr. Shipley in the morning and Shipley would then take him on his rounds to show how the albums were sold. “We would work from a list of referrals that were provided at a meeting Monday morning, and he explained them step by step — the procedure how to approach people at the door, how to talk yourself in, how to deliver your spiel, how to conclude your spiel, how to explain the terms of the contract, how to get people to sign the contract, and the arrangement of the deposit made on the contract and give them their receipt for the cash deposit.”

Every dealer of the Family Record Plan was given a card stating he was an accredited order taker for the company. Each Monday morning there was a sales meeting at which the dealers would turn in their orders for the week. At this meeting each salesman was given a list of referrals containing the names and addresses of new parents and the age and sex of the baby. While Logullo was not prohibited from seeking to sell to other prospective customers, he testified that he solicited no one who was not on the referral lists given him at these meetings with the exception of his mother who bought a book from him. There is no evidence to show how much business of the company came from solicitations made by salesmen of people who were not on their referral lists.

According to Logullo, Mr. Silvers told him that the dealers were on a quota. Logullo said he did not remember what the quota was, but stated that he was told that if a dealer fell below the requisite number of sales for a week, the referrals would be better handled by placing someone whose sales potential was higher or whose sales quotas were up to par, where they could handle the leads.

Logullo was required to give a written report on the success or failure of each of his calls. The referral slip directed that the salesman would not make more than one approach to a customer on the referral slip. A report would determine whether or not a second salesman would be sent to the same location.

The evidence showed that Logullo used his own automobile in the solicitation of customers and that the Family Record Plan knew this. Logullo paid for the expenses incurred in operating his car. The Family Record Plan deducted no income tax or social security from his paychecks.

On the date of the accident, Logullo had made some calls upon persons listed on the referral slips, then drove his mother to and from a south side department store and returned to his soliciting. He called on a potential customer at 87th and Luella, stopped at a gasoline station to make a personal telephone call and then was on his way north to make another solicitation when the accident occurred. Logullo gave no evidence concerning the accident.

After a trial, a jury found for the plaintiffs and against the defendants. After a post-trial motion, the court below entered a judgment notwithstanding the verdict setting aside the jury’s verdict for John Hamilton both individually and as executor of the estate of Virginia C. Hamilton on the basis that they were guilty of contributory negligence in the accident. The judgment for all the plaintiffs was set aside as against the Family Record Plan on the basis that there was not a sufficient showing of agency. The only judgment permitted to stand was the one in favor of Roy A. Sanor as father and next friend of Victoria Sanor, a minor, against Logullo.

The appellants argue first that the court below was in error in granting a judgment notwithstanding the verdict to Family Record Plan since there was sufficient evidence to permit the jury to come to the conclusion that Logullo was not an independent contractor, but was a servant of the company. It is also argued that the court below erred in holding that the plaintiff driver and the deceased passenger were guilty of contributory negligence as a matter of law.

The first question that we shall decide is whether there was enough evidence for the jury to properly reach the conclusion that Logullo was a servant of the Family Record Plan rather than an independent contractor. “If there is a complete absence of probative facts to support the conclusion drawn by the jury in this case, we must sustain the action of the trial court in granting the motion for judgment notwithstanding the verdict. If, on the other hand, there is an evidentiarybasis for the jury’s verdict, we must reverse this case even though we might draw a contrary inference or feel that another conclusion may be more reasonable.” Guidani v. Cumerlato, 59 Ill App2d 13, 18, 207 NE2d 1, 4 (1965).

The evidence shows that Logullo was trained by the Family Record Plan for the purpose of enabling him to sell that company’s products. It was also shown that at the beginning of each week the dealers were given slips of paper containing the names of prospects which they were to contact during the week; a report was to be made out concerning each prospect with whom the dealer spoke. These slips stated, “Notice to Company Representative: You are authorized to make ONE CALL and ONE CALL ONLY on the above names. An immediate report is necessary for company research purposes.”

It has often been said by the courts of this state that whether a relationship is one of master and servant or one of independent contractorship is difficult to determine because many times some elements of each relationship are present.

“An independent contractor is often defined as one who renders service in the course of a recognized occupation, and who executes the will of the person for whom the work is done with respect to the result to be accomplished, rather than the means by which the result is accomplished. [Citations- omitted.] The right to control the manner of doing the work is probably the most important single consideration in determining whether the relationship is that of an employee or an independent contractor. [Citations omitted.]” Henry v. Industrial Commission, 412 Ill 279, 283, 106 NE2d 185, 187 (1952). While it is true that the Henry case, supra, deals with a question of coverage by Workmen’s Compensation rather than with a problem of respondeat superior, the standards used to determine whether or not a person is an independent contractor are the same in this case as in Henry.

The question we must answer, therefore, is how much Logullo was controlled by Family Record Plan in his work of selling the photograph albums. It is clear he was directed to call on certain persons whose names appeared on the lists which were passed out each Monday morning. It is not completely clear whether every salesman had to call on every person on his list, but the fact that each referral sheet asks for an “immediate report” indicates that this would be the case. The representatives were also instructed to call “only once” on the prospective customers. This is surely a limitation on the manner in which the work was to be performed rather than on the ends sought to be achieved. All this is evidence of a master-servant relationship.

The appellee, of course, urges that none of these individual elements is enough to establish a master-servant relationship and argues by inference that together they are not enough to permit a jury to reach this conclusion. The Family Record Plan also argues that while its dealers were given referral slips, they were in no way limited to calling on only these people. It is pointed out that Logullo sold a book to his mother and that she was not on any list furnished him. The appellee also asks us to take note of the fact that any dealer could engage in another business enterprise if he so desired, that the dealer’s time was his own as far as hours were concerned, that the dealer’s sole compensation came from commissions and that no withholding was made from his paycheck by the company. It is urged that the mere fact that the company trained Logullo in the art of door-to-door salesmanship does not make him a servant rather than an independent contractor.

Even if all this is admitted as true, however, the result is that we have elements both of an independent contractorship and of master-servant relationship. Under the authority of Guidani v. Cumerlato, supra, the court below should have allowed the jury’s verdict to stand.

We take note, of course, that the contract entered into between the Family Record Plan and Logullo specifically states that the latter was to be an independent contractor. This, however, is not conclusive of the issue. As is stated in a comment on subsection (2) of the Restatement Second, Agency § 220, “It is not determinative that the parties believe or disbelieve that the relation of master and servant exists, except insofar as such belief indicates an assumption of control by the one and submission to control by the other.” See also CJS, Master and Servant, § 5 at page 48 where it is said, “Moreover it has been held that in determining the relationship of the parties, their conduct and the surrounding circumstances may be examined, even though there is an express, unambiguous contract, since to hold otherwise would be to invite masters to avoid their liabilities and responsibilities by paper contracts which do not express the true relationship between the parties. . . .” In other words, even though the parties to this contract expressly agreed that their relationship would be one of employer and independent contractor, if their conduct of the business was such as to be inconsistent with this contract, the writing cannot be permitted to protect the employer from liability as against an innocent third party. Whether such an inconsistency existed was, in our opinion, a question for the jury’s determination. We believe there was enough evidence to sustain the finding by the jury that Logullo was the servant of the Family Record Plan so as to make that company liable for his torts under the doctrine of respondeat superior. Abt v. Department of Revenue, 34 Ill2d 324, 215 NE2d 243, January, 1966.

The only other question we must answer on this appeal is whether or not there is enough evidence to support the jury’s finding that John and Virginia Hamilton were free from contributory negligence in this accident. It should go without saying that if there is any evidence to support the jury’s verdict, the judgment notwithstanding the verdict should not have been entered by the court below. Guidani v. Cumerlato, supra. The court below gave his reasons for his action as follows:

“Here is the situation. Take this argument about he didn’t see the Logullo car because of the automobile. Well, the same thing could be true about Logullo. The other had the same eyes, and he didn’t see the automobile. He said the automobile was interposed between the automobiles, as to block the view of the plaintiff. In order to block his view, then Logullo’s view was blocked because he was in the position of the same car; but you take a street where a man comes up a corner like that, and he says he looks, and all that is there is just a car; and physically, you know, that only blocks a very small view of that street.
“In the first place, that man was across the whole center line; and to say a man should discharge his obligation with such a cursory glance like that, why I can see where we would have a lot of accidents, if that would be his sole duty; and that’s all he would have done was make a cursory glance to say he looked and didn’t see. It’s not that kind of a hazard. I don’t think that you can take judicial notice that the — After all, a reasonable person can draw that conclusion.
U
“Now, as to the other, we will get down to the question of liability. As I understand, he testified that the wife told him to go ahead there and that also that the — he, himself, to say that he looked and didn’t see what was there for him to see or that he just made a cursory glance and that this accident happened would certainly not be reasonable to say that that was exercising the care required of him under the circumstances.”

Hamilton had testified that he looked both ways as he approached the intersection and that as he was passing through the intersection his speed was less than 20 miles per hour. The collision occurred after Hamilton was more than halfway across the street and it is clear that Logullo’s car ran into the Hamiltons’. There is nothing here to indicate that Hamilton was driving in a manner inconsistent with that of an ordinarily careful motorist. Of course, the fact that Hamilton said he looked and did not see Logullo’s car should have been considered by the jury; there is no indication that it was not so considered. The question, however, remains one of fact. The jury is the trier of fact and its judgment should have been permitted to stand. The simple fact that Mrs. Hamilton said “all right” does not establish contributory negligence on either the driver or passenger. There is no evidence that Mr. Hamilton relied on his wife’s judgment on whether or not to enter the intersection. A driver certainly cannot be bound by gratuitous statements made by passengers concerning the operation of his automobile.

We believe there was enough evidence to support the findings made by the jury. For the reasons given above this cause is remanded to the Circuit Court with directions to set aside the judgments notwithstanding the verdict and to enter judgments on the verdicts returned by the jury in this case.

Judgments reversed and cause remanded with directions.

LYONS, J., concurs.

BURKE, J.,

dissenting in part:

I agree that the trial court’s order setting aside the judgments and verdicts for the Hamiltons against Logullo on the ground of contributory negligence should be reversed. That part of the trial court’s order setting aside the judgments and verdicts for plaintiffs and against Family Record Plan, Inc., and giving judgment in favor of this corporation, should be affirmed. The contract between Logullo and Family Record Plan clearly created a principal-independent contractor relationship.

Postal Tel. Sales Corp. v. Industrial Commission, 377 Ill 523, 37 NE2d 175, at pages 526, 527, defines an independent contractor as “one who renders service in the course of the occupation, and represents the will of the person for whom the work is done only with respect to the result, and not the means by which the result is accomplished.” Ordinarily no single feature of the relationship is determinative of its nature, but all characteristics of the relationship should be considered together. Hempstead v. Toledo Scale Co., 270 Ill App 299, 302.

An analysis of the contract between Logullo and Family Record Plan clearly shows that Family Record Plan was interested solely in the results of Logullo’s services. The “referral lists” which Family Record Plan provided were nothing more than a starting point from which sales could be attempted; Logullo was free to solicit orders from persons other than those named on the list. Merely because the list directed Logullo to make only one call on the persons named therein does not of itself constitute such control over him as to render him an employee. The purpose of this direction was obviously to avoid antagonizing prospective customers and to determine whether a second salesman should approach the prospective customer. Finally, the training course attended by Logullo was merely a program to educate him in salesmanship. In all other matters Logullo was free to do as he pleased, including working and selling for other companies and employing other persons to aid in the selling of the Family Record Plan albums. Logullo used his own automobile in the selling of the albums and was not reimbursed for the expenses incurred in connection with its operation and maintenance. He was paid on a commission basis, and neither withholding tax nor social security were deducted from his check. Under all the facts the realtionship between Logullo and Family Record Plan was clearly that of principal-independent contractor. See Trust v. Chicago Motor Club, 276 Ill App 289.