author: MR. JUSTICE PETERSEN

text:
    Government Employees Insurance Company, Plaintiff-Appellant, v. Saweren J. Dennis, et al., Defendants-Appellees.
    Gen. No. 64-92.
    Second District.
    December 21, 1965.

      Leonard Lundin, Early and Lundin, of Rockford, and Jean Appleman, of Chicago, for appellant.
    Reese and Schlueter, of Rockford, Jack R. Cook, of Loves Park, Matthew P. Cicero and Herbert H. Franks, both of Rockford (B. P. Reese, Jr., of counsel), for appellees.
   MR. JUSTICE PETERSEN

delivered the opinion of the court.

This is an appeal from the decision of the Circuit Court of Winnebago County wherein the court entered judgment for the defendants at the close of plaintiffs case. The action was for a declaratory judgment wherein plaintiff sought to have declared void an insurance policy issued to Saweren J. Dennis on the grounds of misrepresentation and concealment of material facts. The alleged material facts included the ownership of the car by Mrs. Patricia Gilbertson, the rejection of her application for insurance by other insurance companies and the suspension of her right to register a car in the State of Illinois. Joined as defendants were Saweren J. Dennis, Mrs. Gilbertson, and Marjorie Maffei and Joni Lynn Short, two parties who had been injured in an automobile accident while riding with Mrs. Gilbertson. It appears that in 1960 Mrs. Gilbertson purchased a 1957 Ford, which, through a misunderstanding, was not covered by liability insurance. Shortly after this purchase, Mrs. Gilbertson loaned the automobile to Marjorie Maffei, who had an accident. As a result of not being covered by insurance, Mrs. Gilbertson’s right to register an automobile in the State of Illinois was suspended. For some unknown reason, her driver’s license was not suspended in accordance with the statutory provisions of Chap 95%, §§ 7-201, 7-205, 7-211. Subsequently, Mrs. Gilbertson applied to Farmers Insurance Group for automobile liability insurance and was rejected. She then applied to Allstate Insurance Company, which refused to issue her a policy except through the assigned risk plan. Mrs. Gilbertson did not accept. Thereafter, a 1956 Pontiac automobile was purchased in the name of Saweren J. Dennis who made application for automobile liability insurance with the Government Employees Insurance Co. (hereinafter referred to as GEICO) on this car and another car registered in his name. In his application to GEICO, the defendant Dennis, stated he owned both cars but that his fiancee, Mrs. Patricia Gilbertson, would drive the second car 95% of the time. He also stated that no member of his household had ever had any automobile license, permit or privilege suspended, revoked or can-celled. He similarly answered “No” to the question whether any insurance company ever refused, cancelled, refused to renew, or had given notice of intention to cancel or refuse, any automobile insurance for any member of his household. The application provided that if the answer to these questions was “No” on the application, the policy would issue effective as of the date of the postmark of the application. It also provided that if the answer to any of these questions was “Yes,” the policy would not be effective until approved by the company. On receipt of the application, plaintiff issued the policy. The declaration, which was a part of the policy, stated that Dennis was the owner of both cars. The policy contained a provision specifically giving the company the right to cancel the insurance on 10 days’ written notice. Within a few days after the issuance of the policy, the plaintiff sent defendant Saweren J. Dennis, a questionnaire to be completed by Mrs Gilbertson. In this questionnaire, Mrs. Gilbertson denied that any automobile insurance company had refused, cancelled, or refused to renew any automobile insurance policy to her. On September 17th, 1962, Mrs. Gilbertson, while driving the insured car in Wisconsin with Marjorie Maffei and Joni Lynn Short, collided with a train. At the trial, the court refused to permit.the underwriting division manager of plaintiff to testify that the policy would not have been issued, or would have been cancelled had plaintiff known the true facts.

Plaintiff contends that the court erred in excluding evidence proffered by GEICO through its underwriting division manager that the policy would not have been issued or would have been cancelled had the true facts been known and also contends that Dennis’ declaration that he was the owner of the Pontiac was a misrepresentation and material to the risk involved.

Defendants contend that the defense of misrepresentation or intent to deceive is not available to plaintiff as the alleged misrepresentation was not a part of the policy as required by chap 73, sec 766, Ill Rev Stats (1963); that further the exclusion of the testimony of the underwriting division manager was not error; and, finally, that plaintiff waived its policy defense by delaying from October 25th, 1963, until April 25, 1964, to commence this action.

We cannot agree with the defendants’ contention that GEICO waived its policy defense by waiting approximately six months after the accident to commence this action when defendants failed to raise this issue in the trial court. It is well established that a party will not be permitted to argue on appeal a defense not interposed by his answer and supported by evidence in the trial court. Consoer, Townsend & Associates v. Addis, 37 Ill App2d 105, 109, 185 NE2d 97. It is also a rule that a party will not be permitted to argue on appeal a defense not interposed by his answer. Bittner v. Field, 354 Ill 215, 188 NE 342, Security Bank of Mount Carmel v. Pollard, 3 Ill2d 153, 158, 119 NE2d 777.

Defendants next assert that plaintiff should not prevail because of the provisions of chap 73, sec 766, Ill Rev Stats (1963). Defendants argue that under the provisions of that statute the defense of misrepresentation or intent to deceive are available to the insurance company only if the alleged misrepresentation is either part of the policy or incorporated in a document attached thereto. They further argue that the alleged misrepresentation or statement allegedly made with intent to deceive the insurance company must be material to the risk. The statute provides:

“No misrepresentation or false warranty made by the insured or in his behalf in the negotiation of the policy of insurance or breach of a condition of such policy shall defeat or avoid the policy or prevent its attaching unless such misrepresentation, false warranty or condition shall have been stated in the policy or endorsement or rider attached thereto or in the written application thereof of which a copy is attached to or endorsed on the policy and made a part thereof. No such misrepresentation or false warranty shall defeat or void the policy unless it shall have been made with actual intent to deceive or materially affects either the acceptance of the risk or the hazard assumed by the - company. This section shall not apply to policies of marine or transportation insurance.”

We concur in the defendants general summation of sec 766, supra. However, our conclusion is that the application of this section is limited as therein expressed, namely, “in the negotiation of the policy.” The questionnaire forwarded to Mrs. Gilbertson was after the issuance of the policy and the answers sought were not to induce GEICO to issue the policy, but to prevent the cancellation thereof. We feel that this section has no application to the factual situation herein. Her denial by her answers in the questionnaire that any insurance company had refused, cancelled, or refused to renew any automobile insurance for her is an issue which is material to the risk and is available to GEICO. Klim v. Johnson, 16 Ill App2d 484, 491, 148 NE2d 828. Dragosvich v. Allstate Ins. Co., 2 Ill App2d 50, 118 NE2d 57 (Abst). Loving v. Allstate Ins. Co., 17 Ill App2d 230, 237, 149 NE2d 641.

Although the policy issued did not have a copy of the application of Dennis attached, the declaration therein represents Dennis to be the owner. This, we believe, to be in compliance with sec 766, supra, and therefore, the defense of misrepresentation of ownership was available to GEICO. Western States Mut. Automobile Ins. Co. v. May, 18 Ill App2d 442, 447-454, 152 NE2d 608. The failure to disclose true ownership of a vehicle or misrepresentation as to ownership is material to the risk. There is evidence in this record that Mrs. Gilbertson was the owner of the car. Dennis, in his deposition, stated that for all practical purposes the car belonged to Mrs. Gilbertson and it was purchased for her to get her away from the other car insured by Dennis. The Chevrolet traded in on the car in question was owned by Mrs. Gilbertson’s father. She was to pay the insurance premiums for the Pontiac. The deposition of Mrs. Gilbertson admitted she owned the car but that the title was in Dennis. The trial court in dismissing this cause at the close of the plaintiff’s proofs, when viewed in the light of this testimony, committed error. To ascertain the true owner of the vehicle it is not sufficient to discover who is the registered owner. American States Ins. Co. v. White, 341 Ill App 422, 94 NE2d 95. Cieskus v. Yuvan, 347 Ill App 559, 107 NE2d 56. Hall v. Illinois Nat. Ins. Co., 34 Ill App2d 167, 180 NE2d 695.

The trial court refused the offer of GEICO of expert testimony of an underwriter under the misapprehension that the only issue to be determined was whether or not there had been misrepresentations. The trial court found, apparently, that there had been no misrepresentation. In view of our finding of the testimony herein quoted most advantageous to GEICO there is evidence of misrepresentation. The trial court erred in refusing this offer of proof. In Traders’ Ins. Co. v. Catlin, 163 Ill 256, 258, 45 NE 255, it was determined that the testimony of an underwriter was admissible upon the question of materiality of circumstances effecting the risk. Moyer v. John Hancock Mut. Life Ins. Co., 6 Ill App2d 1, 5, 126 NE2d 157. La Penta v. Mutual Trust Life Ins. Co., 4 Ill App2d 60, 67, 123 NE2d 165.

The judgment of the trial court is reversed and this cause is remanded with directions for a new trial in accordance with the views herein expressed.

Reversed and remanded.

ABRAHAMSON, P. J. and MORAN, J., concur.


source: Caselaw Access Project

author: CORYN, J.

license: Public Domain

text:
    Grace Foster, Plaintiff-Appellee, v. Jesse E. VanGilder and Tel Radio Transport Corp., a Corporation, Defendants-Appellants.
    Gen. No. 65-4.
    Third District.
    December 14, 1965.
    Rehearing denied February 3, 1966.

      Shapiro, Lauridsen, and Vogt, of Kankakee, for appellants.
    Francis J. Householter, and Thomas A. Nutting, both of Kankakee, for appellee.
   CORYN, J.

Plaintiff, Grace Foster, brought this personal injury-suit against defendants, Jesse E. VanGilder and Tel Radio Transport Corp., for injuries- sustained in a collision at Bradley on December 10, 1958, when the vehicle in which she was riding as a passenger, and which was being driven by her husband, collided with a truck being operated by VanGilder for his employer, Tel Radio Transport Corp., the owner. The jury returned a verdict in favor of defendants, upon which verdict judgment was entered, and subsequently, the trial court granted plaintiff a new trial on the ground that the verdict was contrary to the manifest weight of the evidence. It is from this order granting plaintiff a new trial that defendants appeal, asking this court to restore the judgment in their favor'

At about 10 a. m. on the day of the mishap, the vehicle in which plaintiff was riding was traveling in a northerly direction on Schuyler Avenue, and was approaching the intersection of Erie Street and Schuyler Avenue. At the same time Jesse VanGilder was driving a semitrailer truck also in a northerly direction along Schuyler Avenue. The overall length of this semitrailer was approximately thirty-five feet; VanGilder was- hauling mail. The pavement was icy and there were four-to-six-inch ruts in the normal traffic lanes. The Foster automobile was attempting to turn right onto Erie Street at the time it was struck from the rear by defendant’s truck. The only persons testifying as eyewitnesses to the accident were plaintiff and her husband, and the defendant, Jesse VanGilder.

The Fosters testified that they were traveling about fifteen miles per hour in the last block of Schuyler Avenue while approaching Erie Street, that Mr. Foster turned the right directional signal on when about 100-to-125 feet from the intersection, and that he was gradually reducing his speed, having taken his foot off the accelerator, but that at no time did he apply the brakes to his automobile. They further testified that their car was hit by defendants’ truck when about a car length south of said intersection, and that the force of the impact caused their car to skid through the intersection and come to rest on the northeast corner of said intersection. When their auto became stopped, the front part of it was on a terrace and the rear part was protruding onto Erie Street. According to the Fosters, defendants’ truck came to rest in the northbound lane of Schuyler Avenue about even with the south curb of Erie Street. The Fosters also stated that they were traveling about five miles per hour at the time of impact. The impact to the Foster automobile was to the left rear and center, thereby causing damage to the back bumper, trunk lid, left rear lights, and frame. Grace Foster sustained personal injuries as a result of this collision, which injuries have been diagnosed by her doctor as a muscle strain to her cervical vertebrae. For these injuries Mrs. Foster continues to take aspirin, Anacin, and Bufferin, and for a time wore a cervical collar and underwent traction. She still continues to complain of pain in her back.

VanGilder testified that he regularly drove the rnail truck for Tel Eadio Transport Corp. He stated that he first observed the Foster vehicle when it was probably three or four blocks from the Erie Street intersection, and that at that time the distance between the two vehicles was about 200 feet. He was then traveling from ten-to-fifteen miles per hour. As the two vehicles approached Erie Street, the distance between them decreased. When the Foster vehicle was about 100 feet from the intersection, VanGilder noticed that it had slowed down. He was then about 100 feet from the Foster vehicle. Upon seeing the Foster vehicle slow down, he applied the brakes to the truck, causing it to slide on the icy pavement. VanGilder tried to operate the truck so that it would get around the Foster vehicle, but was unsuccessful in attempting this, as the truck wheels were sliding in the ruts in the ice, which ruts were four-to-six inches deep. At the time of impact, VanGilder testified that the truck was traveling at approximately two miles per hour, and that after the impact, it traveled only a distance of two feet. VanGilder testified that he did not see any brake lights or right turn signals operating on the Foster car.

Two other witnesses testified, both being called by the plaintiff. Dr. Morris Lang, the plaintiff’s treating physician, testified as to' the nature and extent of her injuries, the treatment prescribed by him, and her present condition. Police Officer John W. Carney, who arrived on the scene shortly after the accident, testified as to the physical conditions at the scene and the position of the vehicles after the collision.

No errors or irregularities in the trial are claimed by any of the parties hereto, nor were assigned by the trial judge as his reason for granting a new trial. The record shows that the trial judge granted the motion for a new trial solely on the ground that the verdict was contrary to the manifest weight of the evidence.

The oft repeated rule is that a court of review will not disturb a trial court’s ruling on a motion for a new trial unless the record clearly shows that the trial court abused its discretion. The reason for this rule is that a trial judge is in a superior position to determine whether or not a fair trial was had and substantial justice accomplished. Duff v. Ewing, 60 Ill App2d 382, 208 NE2d 320. The trial judge, however, should not set aside a verdict and grant a new trial merely because he would have decided the case differently if he had been the trier of fact. Stobbs v. Cumby, 9 Ill App2d 138, 132 NE2d 448; Bobtex Industries v. Continental Baking Co., 4 Ill App2d 377, 124 NE2d 78; Read v. Friel, 327 Ill App 532, at 538, 64 NE2d 556; Finley v. New York Cent. R. Co., 19 Ill2d 428, at 436, 167 NE2d 212; or because he feels that inferences or conclusions other than those drawn by the jury might be more reasonable. Rouse v. New York Cent. & St. L. R. Co., 349 Ill App 139, at 146, 110 NE2d 266; Kahn v. James Burton Co., 5 Ill2d 614, at 623, 126 NE2d 836.

In Read v. Friel, supra, the court stated as follows:

“Obviously the trial judge, under the law, is not warranted in granting a new trial merely because he thinks the verdict should have been for the other party. He must take into consideration the fact that the jury saw and heard the witnesses, and found contrary to his impression. . . .”

In Finley v. New York Cent. R. Co., supra, at 436, it was stated as follows:

“The fact that contrary inferences would be equally supported by the evidence is not sufficient to show unreasonableness of the verdict. It is the jury’s function to weigh contradictory evidence, judge the credibility of the witnesses, and draw the ultimate conclusion as to the facts. Its conclusion, whether relating to negligence, causation, or any other factual matter, should not be set aside merely because different conclusions could be drawn or because judges feel that other results are more reasonable. Dowler v. N. Y., C. & St. L. R. R. Co., 5 Ill2d 125.”

In the instant case, we have examined the record closely to determine whether there is any support for the order granting a new trial. No error or irregularities in the course of the hearing are claimed, nor do we find any which would suggest a valid basis for the order. Plaintiff has asserted that the verdict of the jury was contrary to the manifest weight of the evidence, and in support thereof relies heavily upon cases supporting her thesis that the driver of a motor vehicle which collides with the rear of vehicle in front of him on the highway may be negligent as a matter of law. That very statement of plaintiff’s thesis, however, admits also of the converse, that is, that other facts in the record are always determinative of whether liability in the case of a rear-end collision is a question of law or fact. Liability cannot be inferred as a matter of law merely because defendants’ truck collided with the rear of the automobile in which plaintiff was a passenger. Ferdinand v. Lindgren, 32 Ill App2d 133, 177 NE2d 10.

There was conflict in the evidence on the issue of the speed of the two vehicles. The street was ice-covered and deeply-rutted. The evidence on the matter of whether the vehicle in which plaintiff was riding gave any signal of the driver’s intention to turn at the intersection was also conflicting. In our judgment, the issue of liability in this case was for the jury to determine, and we do not think it can be said, as plaintiff contends, that the verdict rendered was manifestly or palpably erroneous. We conclude that the order complained of .here was the result of an erroneous substitution by the trial court of its reasonable inferences for those contrary inferences drawn by the jury, which also find reasonable support in the evidence. This, of course, was improper. Accordingly, the order of the Circuit Court is reversed, and the cause is remanded with directions to vacate the order granting a new trial, and to enter an order reinstating the judgment for defendants on the verdict.

Reversed and remanded with directions.

ALLOY, P. J. and STOUDER, J., concur.


author: STOUDEE, J. CORYN, J.,

text:
    Bruce M. Schoenbein, an Incompetent Person, by Russell E. Schoenbein, His Conservator, Plaintiff-Appellee, v. Board of Trustees of the Police Pension Fund of the Village of Morton, Illinois, and Walter R. Strunk, et al., Defendants-Appellants.
    Gen. No. 64-52.
    Third District.
    December 13, 1965.

      Stanley W. Crutcher, of Peoria (Conrad Noll, Jr., of Springfield, of counsel), for appellants.
    McConnell, Kennedy, McConnell & Morris, of Peoria (Thos. B. Kennedy, Sr., of counsel), for appellee.
   STOUDEE, J.

This is an appeal from a judgment of the Circuit Court of Tazewell County reversing an order of the Board of Trustees of the Police Pension Fund of the Village of Morton.

The Conservator of the estate of Bruce Schoenbein, incompetent, hereinafter referred to as Appellee, commenced this action by filing a petition for a pension with the Board of Trustees of the Police Pension Fund of the Village of Morton, hereinafter referred to as Appellant. The facts as shown by the petition and evidence are not in dispute. Likewise no question of procedure is involved.

■ Appellee was appointed policeman by the Village of Morton in 1956 and served as such until December, 1962. In 1960 the Village of Morton by ordinance provided for a “Police Pension Fund System” as authorized by statute. All policemen then employed became entitled to participate in the pension program regardless of age at first appointment and regardless of physical condition. Appellee being a policeman at the time of the adoption of the ordinance became entitled to its benefits without examination or further qualification. Appellee made regular contributions to the pension fund until March, 1963. In December, 1962 Appellee, by reason of mental illness, was unable to perform his duties as a policeman. Thereafter in January, 1963, he was committed to a state hospital for treatment. A Conservator of his person and estate was duly appointed in February, 1963. Appellee was released from the state hospital on March 7, 1963. The Village of Morton paid Appellee his regular salary until March 15, 1963, after which time it refused so to do. On June 10, 1963, Appellee filed his petition for pension and a hearing was held thereon in September, 1963. The evidence of four witnesses was considered by the Board in behalf of Appellee. Three of the witnesses were doctors and they each testified that Appellee was mentally ill to the extent that he was incompetent to perform his duties as a policeman. No evidence was presented concerning any other condition affecting Appellee’s state of health. The fourth witness, the Appellee’s brother and Conservator, testified that Appellee had been gainfully employed as a hod carrier and farm laborer since his release from the hospital on March 7, 1963, until the time of the hearing, the doctors at the hospital having recommended physical labor as. treatment for Appellee’s mental illness. At the conclusion of the hearing the Board found that Appellee had failed to prove that he was “physically disabled” as required by statute and denied his claim for a pension.

Appellee filed a complaint in the Circuit Court of Tazewell County under the provisions of the Administrative Review Act seeking to reverse the order of the Board. The Court, after reviewing the record, found that Appellee was not mentally fit to perform the duties of a policeman and therefore became physically disabled to an extent necessitating his suspension from the police force. The Court thereupon reversed the order of the Board and granted Appellee’s pension and it is from this judgment that Appellant appeals.

Appellant in seeking to reverse the decision of the Court below contends that the Court erroneously interpreted the statutory requirement that a policeman be “physically disabled” in order to be entitled to a pension under section 10-8-7, Chapter 24, Illinois Revised Statutes 1961, which is as follows; “Whenever any member of a regularly constituted police force in any such city, village or incorporated town, becomes physically disabled to such an extent as to necessitate the suspending of performance of his duty on such police force, or retirement from the police force, he shall be paid from the fund a pension of one-half of the salary attached to the rank he held on the police force for one year immediately prior to the time of his so suspending performance of his duty or retirement. Whenever such disability ceases and the policeman resumes the performance of his duty on the police force such pension shall cease. If the disability continues for a period of time which, if added to the period of his active service equals 20 years, the policeman shall, if he is then of the age of 50 years, if he elects to then retire from said police force, be paid a regular pension in lieu of such disability pension.” Appellant contends that this provision is clear and unambiguous and does not include a policeman who is “mentally unfit” or “mentally disabled.”

The sole question before us is what meaning shall be ascribed to the phrase “physically disabled.” The facts not being in dispute, their legal effect becomes a matter of law and the rule as to the power of the Court to set aside the decision only when it was made against the manifest weight of the evidence has no application. Kensington Steel Corp. v. Industrial Commission, 385 Ill 504, 509, 53 NE2d 395.

We have had provisions dealing with police pension funds for many years. The Act of 1909 provided that a policeman was entitled to a pension when he . . became physically disabled in and in consequence of his duties. . . .” The legislature again had occasion to consider police pension plans in 1943 when it broadened the scope of the provision by eliminating the requirement that the physical disability be service connected namely by eliminating the phrase “in and in consequence of his duties.”

In determining the meaning of a statute a primary rule of construction is that words are to be given their plain ordinary meaning. Where the legislature has expressed itself in clear unambiguous language the plain meaning of the words so employed cannot be disregarded.

Dictionaries define “physical” as “of or pertaining to the body” and “mental” as “of or pertaining to the mind,” the words are therefore words of distinction or opposition. The words physical or mental are used in ordinary language to refer to distinct and .different parts or aspects of a person. The language of the witnesses for Appellee is of especial pertinence in this respect. Dr. Ledien stated, “No physical examination was done, as patient had no physical complaints . . . and the purpose of the examination was to evaluate his mental condition” and concluded “Schizophrenic Reaction, Paranoid, which makes him unfit to stay on the police force.” Dr. Turow stated, “The psychiatric examination reveals positive findings of paranoid projection mechanisms, suspiciousness, anxiety and apprehensiveness, flattening of affect and paranoid delusional ideas” that “. . . Because of the presence of a paranoid mental illness, this applicant can not meet the responsibilities and the requirements of good judgment necessary in the execution of any position in the Police Department” and concluded with the diagnosis that “It is my firm opinion that Bruce M. Schoenbein is mentally disabled and is not competent to perform duty with the Police Force of the Village of Morton, Illinois.” Dr. Maran stated, “No physical complaints were offered. Partial physical examination revealed normal heart and lungs. Regarding his psychiatric condition, there is still evasiveness, guardedness, in association with suspiciousness and vague ideas of persecution. His general physical condition is entirely satisfactory. This is not the case of physical disability but that of a mental disability.” Russell Schoenbein, brother of the policeman, testified on cross-examination that his brother has in no way evidenced any physical impairment in the nature of a broken leg, arm or other physical disability. Russell Schoenbein also testified that the state hospital had recommended physical labor as therapy. Each of the foregoing witnesses by their language recognized the distinction and differences between “physical disability” and “mental disability” and each concluded that Appellant was not “physically disabled” and was not physically impaired.

Appellee in support of his claim for pension contends that even though a condition of “mental unfitness” may be different from a condition of “physical disability” nevertheless “mental unfitness” is within the spirit and intent of the statute. He argues that the use of the word “disability” alone in the portions of the statute following the phrase “whenever a policeman shall become physically disabled” evidences the intent of the legislature to include all disabilities. However the oft repeated and well established rule of statutory construction of ejusdem generis does not support this contention. Where general words follow particular and specific words in a statute, the general words must be construed to include only things of the same kind as those indicated by the particular and specific words. City of Chicago v. Ross, 257 Ill 76, 100 NE 159. The use of the word “disability” cannot enlarge the term “physically disabled.” For the same reason we do not believe the cases referred to our attention by Appellee construing the word “disability” support his contention. None of these cases construe “physical disability” as including a “mental disability.” Appellee also urges that section 10-8-2, chapter 24, Illinois Revised Statutes 1961, which provides that a policeman must be found to be “physically and mentally fit” in order to be eligible to participate in the pension fund is of significance in determining the intent of the legislature. While this eligibility requirement does evidence an awareness by the legislature of the importance of a policeman’s physical and mental fitness it also demonstrates an awareness by the legislature of a distinction or difference in the meaning of the words “physically” and “mentally.” Being aware of the distinction it cannot be said that the legislature intended anything different than what it said. Finally Appellee argues that the legislature, by an Act approved in March 1963, effective July 1, 1963, codifying existing pension statutes intended to make uniform disability standards. With this contention we cannot agree. Section 1-102, Chapter 108%, “The Illinois Pension Act” states that the Act is a reenactment of existing pension laws and shall not be considered a new Act. Likewise, Chapter 108% individualizes each of the many pension plans which it encompasses and retains a variety of standards as associated with each pension plan. Both parties concede that section 10-8-7, Chapter 24, Illinois Revised Statutes 1961, is substantially the same as section 3-114, Chapter 108%, Illinois Revised Statutes 1963, and it was therefore appropriate that the case be considered under the latter section.

The provisions of a Police Pension Act are necessarily the function of the legislature. It is not within the province of the courts to determine what the legislature might have done or should have done, but only what it has done.

It is our conclusion that the legislature has expressed itself clearly and unambiguously in requiring that a policeman become “physically disabled” before he is entitled to a pension. We find nothing in the letter, spirit or intent of the statutes applicable to or supporting Appellee’s contentions. Appellee has failed to prove that he was physically disabled and accordingly the order of the Trustees of the Police Pension Fund of the Village of Morton denying Appellee’s pension was correct and should have been sustained by the Court below. Finding error in the judgment of the Circuit Court of Tazewell County the judgment is reversed.

Judgment reversed.

ALLOY, P. J., concurs.

CORYN, J.,

dissenting:

I do not agree with the majority opinion in this case, as I am of the opinion that their interpretation of the words “physical disability” as used in the Police Pension Fund Act, Ch 24, § 10-8-7, 111 Rev Stat 1961, is too narrow and not within the spirit and intent of said statute. Some emphasis has been placed on dictionary definitions of these words in the majority opinion. The correct definition, in my opinion, is to be found in Black’s Law Dictionary, Fourth Edition, on page 548, which states: “A physical disability is a disability or incapacity caused by physical defect or infirmity, or mental weakness or alienation. . . .” This definition recognizes that the human mind, limbs, organs, etc., are all parts of the whole, that is, the body, and that physical disability means impairment of any part of the body. That this broader definition of the term “physical disability” was intended by the legislature is even more evident when we consider that mental incapacity often results from illness or injury to parts of the body other than the brain. “Statutes granting pensions to public officers, including veterans, policemen, firemen and other public employees, were enacted to stimulate governmental efficiency by encouraging continued and loyal public service, and as a reward for the hardships and hazards suffered by the soldiers in our armies. Although this type of legislation constitutes a form of public grant, nevertheless it has as its purpose the promotion of the general welfare, and for that reason pension statutes are liberally construed to accomplish their objectives. Thus in determining the beneficiaries entitled to pensions, qualifications of the pensioner, and the time of service required for obtaining a pension, the courts should not resort to technicalities. . . .” Sutherland Statutory Construction (3rd Edition) Volume 3, § 7209. In my opinion, mental illness or injury, and resulting disability, is within the meaning and intent'of that section of the Police Pension Fund Act providing for disability benefits to a policeman who is “physically disabled to such an extent as to necessitate the suspending of performance of his duty on such police force.” The order of the Circuit Court of Tazewell County granting the plaintiff a disability pension should be affirmed.


text:
    George Pratt as Conservator of the Estate of Gilbert Baker, an Incompetent, Appellant v. Roger Baker, Individually and as Executor of the Estate of Walter Baker, Deceased, Appellee.
    Gen. No. 65-1.
    Second District.
    December 3, 1965.
    Rehearing denied January 4, 1966.

      Donald J. Hennessy, of Naperville, for appellant.
    McDermott & Emery, of Chicago (Hamilton Smith and Frank J. Uvena, of counsel), for appellee.
   MR. JUSTICE PETERSEN

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court of DuPage County dismissing plaintiff’s complaint in a proceeding against the $10,000 bond of the Executor of the Estate of Walter Baker, deceased. The principal question for our decision is whether or not the amended complaint states a cause of action. A better understanding of the question involved in this appeal will come about if we review the context of prior litigation between the parties hereto, for the basic factual situation upon which this appeal arises, is set forth therein.

In Pratt v. Baker, 48 Ill App2d 443, 199 NE2d 307, (2nd Dist 1964), in an appeal involving two claims filed by George Pratt as Conservator for Gilbert Baker, alleged to be incompetent, against the Estate of Walter Baker, deceased, we held that those claims were barred by the failure to file within the time allowed by law. One claim was based on promissory notes signed by Walter Baker and dated some 40 years ago. The other claim was for services rendered by Gilbert Baker to the deceased during a period of nearly 30 years, beginning in 1930. The Probate Court of DuPage County, applying the general Statute of Limitations, disallowed the claim on the notes; the Court also disallowed the claim for services rendered more than 5 years prior to the claim, allowing only that portion of the claim based upon the rendering of services within the five-year period not barred by the general statute. We reversed the judgment that had been rendered in favor of the conservator.

In that case, inter alia, it was argued that the defendant Executor was estopped from raising the nonclaim statute as a defense by reason of his failure to have a guardian ad litem appointed for Gilbert Baker, when he knew of Gilbert’s incompetence. At page 446, the Court held that there was ample precedent against the use of estoppel to avoid the effect of the statute on nonclaim and that neither an executor, legatee or distributee could waive the limitation on the presentation of claims. At page 443, on the subject of Gilbert Baker’s incompetency, the Court stated:

“It appears that Gilbert Baker, although not insane, was mentally defective and regarded as not employable. He was taken into the home of his brother, Walter Baker, who provided room and board and some spending money, and Gilbert Baker performed such farm labor as was within his ability. He could do some types of physical labor if told what to do, but he was not competent to operate a tractor.”

It is the same question of Gilbert Baker’s alleged incompetency, and the related question of whether or not Roger Baker, as Executor of the Estate of Walter Baker, knew of this incompetency and failed to take the proper steps, that again emerge as the nub of the amended complaint, that is questioned in this present appeal. Let us look then at the substance of this amended complaint.

The amended complaint alleges that the defendant, having personal knowledge of the fact that Gilbert Baker was under a legal disability and not capable of managing his financial affairs, had one or more of the following duties:

(a) To advise the Court that an interested person was under a legal disability;
(b) To have a guardian ad litem appointed; and
(c) To indicate on the face of the petition for Probate that an interested person was under a legal disability.

The amended complaint further alleged that the defendant had violated these alleged duties; and it alleged that he had violated his Executor’s Bond by one or more of the following acts or omissions:

(a) Defendant caused to be filed the Appearance and Waiver of Notice of Gilbert Baker, contrary to the law which allows for filing only for persons not under legal disability;
(b) Defendant failed to advise the Court of the legal disability of an interested person until long after the nine-month period for filing claims;
(c) Defendant failed to have a guardian ad litem appointed for Gilbert Baker;
(d) Defendant failed to request the Clerk of the Court to send Gilbert Baker, an interested person, a copy of the petition for Probate in accordance with the law; and
(e) Defendant failed to indicate on the face of the . petition to Probate that Gilbert Baker was an incompetent or under legal disability.

The amended complaint alleged that since, during the nine-month period within which claims against the estate could have been filed, neither guardian, guardian ad litem nor conservator were appointed for Gilbert Baker, nor copy of the petition to Probate sent to him, the period for filing the aforesaid claims expired before this plaintiff had an opportunity to file them. As we have said, we disallowed these claims on appeal, holding that they were barred by the failure to file within the time allowed by law.

Finally, the amended complaint alleged that by reason of these failures and omissions on the part of the Executor Roger Baker, Gilbert Baker was damaged in excess of the $10,000 bond of the defendant Executor, and prayed for relief in a claim on that bond in the sum of $10,000.

The defendant’s motion to strike and dismiss the complaint is bottomed on the following reasons:

(a) The amended complaint does not state a claim upon which relief can be granted;
(b) The law does not impose upon the defendant the duties plaintiff seeks to impose upon him;
(c) The amended complaint (supposing that defendant knew that Gilbert was incompetent, and despite that knowledge failed to take action in accordance with that knowledge) fails to allege that defendant had any experience in the matter of determining the state of one’s mental health;
(d) The plaintiff claim predicated on three promissory notes, dated 1922, 1923 and 1924, is barred by the 10 year statute of limitations, Ill Rev Stats 1963, chap 83, sec 17; the claim based on farm labor performed from 1930-1959, now in effect seeks indirectly to recover on the claim for wages which is barred by the five-year statute of limitations, Ill Rev Stats 1963, chap 83, sec 16. Since neither of these claims is valid, plaintiff has no cause of action, irrespective of whether defendant had the duties plaintiff says he had.

We must decide whether or not this amended complaint, together with its countervailing motion to strike and dismiss the complaint, and considered in its context of prior litigation, states a cause of action. We hold that no cause of action has been stated.

The crucial issue in this appeal is the question of the alleged knowledge that the defendant had of Gilbert Baker being “under a legal disability.”

Plaintiff cites In re Estate of Viehman, 47 Ill App2d 138, 197 NE2d 494 (1st Dist 1964), as authority for the proposition that an executor, who had personal knowledge of the legal disability of a person in interest, has a duty to inform the Court of this knowledge. But, by the undisputed facts in Viehman, the record discloses that one E. Guy Mundy was, at the time of the decedent Ethel A. Viehman’s death, by the' appointment of the County Court of Wabash County, not only her duly appointed, qualified and acting conservator, but also the duly appointed, qualified and acting conservator for Camille C. Viehman, Ethel A. Viehman’s only child, and the administrator’s knowledge of the heir’s incompetency had already been judicially determined.

In the case at bar, there was no such judicial determination. Plaintiff’s allegation is, by itself, insufficient to establish such conclusive knowledge. In short, the plaintiff’s allegation remains, at best, a conclusion, unfounded by any statement of fact. We have here a case of hindsight—not foreknowledge. Viehman cannot be stretched in this case to fit the plaintiff’s Procrustean bed of the personal knowledge of alleged incompetency—an allegation supported neither by fact nor law.

Neither sections 63, 64 nor 65 of the Probate Act (Ill Rev Stats 1963, c 3, §§ 63, 64 and 65) nor the Rules of Practice of the Probate Court of DuPage County, Illinois (effective January 1, 1961) impose a duty upon either the executor or the Clerk of the Courts— Probate or Circuit—to ascertain the competency of adult heirs and to cause a conservator, or guardian, or guardian ad litem, to be appointed for or on behalf of any person of legal age having an interest in the estate.

By his motion to st?'ike and dismiss the complaint for failure to state a cause of action, defendant may be deemed to admit all well-pleaded allegations of fact in the amended complaint. Pease v. Kendall, 391 Ill 193, 63 NE2d 2 (1945). Defendant may not, however, be deemed to admit plaintiff’s legal conclusions, Pierce v. Carpentier, 20 Ill2d 526, 169 NE2d 747 (1960), or that which is patently not so, Lustgarten v. First Federal Savings & Loan Ass’n, 42 Ill App2d 86, 191 NE2d 434 (1st Dist 1963).

It appears from defendant-appellee’s written brief that in the case of Pratt v. Baker, supra, there was some difference of opinion as to whether or not Gilbert Baker was mentally defective, and that this difference of opinion existed between both experts and laymen. To hold defendant liable for certain knowledge of Gilbert Baker’s mental condition, would require vastly more of an executor than any law of this state presently calls for. To be sure, one who has been put by Court order into a position of trust in any sort of fiduciary capacity does well, as the late Judge Cardozo once said, “to observe the punctilio of an honor the most sensitive.” Meinhard v. Salmon, 249 NY 458, 164 NE 545 (1928).

The Probate law was not designed to set impossible tasks for those who would assist in the distribution of the property of the deceased. Neither clerks nor executors are held to such technical skill. It is enough that they proceed cautiously and prudently to protect the unwary, the legally disabled, and the incompetent when this condition is called to the attention of the court. It is quite another thing to say that when such a condition is discovered or suspected after the time within which a claim might have been filed, that it follows that the executor had “personal knowledge” of that incompetency.

We, therefore, hold, as a matter of law, that the amended complaint in this cause does not state a cause of action. The judgment of the Circuit Court of DuPage County dismissing the plaintiff’s complaint is hereby affirmed.

Judgment affirmed.

MORAN and DAVIS, JJ., concur.


text:
    Eldon L. Stroup, et al., Plaintiffs-Appellants, v. Charlotte Codo and James J. Alessio d/b/a Alessio and Sons, Defendants-Appellees.
    Gen. No. 65-34.
    Third District.
    December 14, 1965.

      Galowich & Galowich, of Joliet (Jerald S. Galowich, of counsel), for appellants.
    Gray, Thomas, Wallace & O’Brien (Robert J. Baron, of counsel), for James J. Alessio, appellee.
   CORYN, J.

Plaintiffs, Eldon L. Stroup and Hilda Stroup, and defendant, Charlotte Codo, are owners of adjoining commercial lots which abut at their northern boundaries upon West Jefferson Street in the City of Joliet. Both lots are shaped as parallelograms, the plaintiffs having frontage of 110 feet, the defendants having frontage of forty feet, and the depth of each lot being 139 feet. A one-story frame building measuring approximately 18' x 36' located at the northeast corner of plaintiffs’ lot has been used for some time during warmer seasons of every year as a drive-in ice cream stand. A fence located approximately three feet easterly of plaintiffs’ western boundary, and along its length, is the only physical barrier between the lots in question. James Alessio, d/b/a Alessio & Sons, also a defendant, as general contractor to Codo, completed construction of a concrete block building upon her aforementioned lot in January, 1964. During the following May, plaintiffs had their premises surveyed, and thereupon discovered that the easterly side of the new Codo building, measuring thirty-two feet from north to south, protrudes across their western property line. The encroachment measures approximately two inches at the northeast corner of the building and increases along the course of the wall to a maximum of about five and one-half inches at the southeast corner. This proceeding, involving several counts, a counterclaim and a cross-complaint followed. The cause thereafter proceeded to trial before the court solely on Count II of plaintiffs’ complaint, which seeks injunctive relief against defendant, Charlotte Codo, requiring her to remove the encroachment. After the hearing, the Chancellor found (1) the encroachment small, (2) the detriment to plaintiffs slight, (8) the cost of removal great, (4) the encroachment unintentional, and (5) plaintiffs’ remedy at law for damages adequate. Accordingly, a decree was entered in favor of the defendants denying the mandatory injunction prayed for by plaintiffs. The Chancellor also made the additional finding that no just reason exists for delaying appeal. Plaintiffs thereupon perfected this proceeding for review.

Plaintiffs contend on appeal that the court’s finding that the encroachment was unintentional is contrary to the manifest weight of the evidence, and that the order denying injunctive relief, which depends for its validity upon the correctness of this finding, must therefore fail. They also contend that the encroachment is not slight, and that the contrary finding is also against the manifest weight of the evidence. In addition, plaintiffs argue that the trial court committed prejudicial error in admitting defendant’s Exhibit No. 1 to evidence over their objection.

This exhibit purports upon its face to be a plat of survey of the Codo premises, bearing the signature, certificate, and seal of a person identified thereon as a Registered Illinois Land Surveyor. James Alessio, called as an adverse witness on behalf of plaintiffs, testified that after entering the agreement to construct the building for Mrs. Codo, he was furnished with a plat of the premises by her husband. He testified generally as to what that plat showed, and that from the plat he located stakes at the northeast and southeast corners of the lot, and from these stakes verified the frontage and depth of the premises before construction was commenced. Subsequently, Alessio was called as a witness on behalf of Codo, and then identified defendant’s Exhibit No. 1 as the survey plat to which he had made earlier reference. Mrs. Codo’s husband testified that said plat had been furnished his wife at the time the premises was purchased in 1963. The exhibit was then offered by Mrs. Codo for the limited purpose of corroborating the testimony of James Alessio to prove that he had relied upon a document purporting to be a plat of survey, and not for the purpose of proving the truth of the matters that said plat purports to show. The record indicates that the Chancellor reserved his ruling on this offer until the conclusion of the evidence, and it appearing then that defendants did not dispute plaintiffs’ proof of the fact of an encroachment, defendant’s Exhibit No. 1 was admitted-in evidence for the limited purpose for which it was offered.

We think the ruling admitting defendant’s Exhibit No. 1 to evidence was not prejudicial error. James Alessio, when called by plaintiffs, had already testified, without contradiction, as to what the plat showed; that it was given to him by Mr. Codo; and that he had made his calculations regarding the location of the building in reliance upon this plat. In view of this testimony and the limitations upon the offer, and that Mrs. Codo did not dispute the fact of an encroachment, the admission of this plat without sufficient authentication, and for limited purposes, as cumulative evidence, corroborating other competent testimony not disputed, was not harmful. Bradley v. Western Casket & Undertaking Co., 185 Ill App 375. See also Curtin v. Mann, 258 Ill App 419; Schumacher v. Klitzing, 269 Ill App 60; Chapin v. Foege, 296 Ill App 96, 15 NE2d 943; Malott v. Woods, 119 Ill App 90.

It is an accepted principle of law that where an encroachment is slight and unintentional and the cost of removing it great, and the corresponding benefit to the adjoining owner is small, and damages can be had, that courts will ordinarily refuse to grant injunctive relief, and will leave the complaining party to his remedy at law. See Pradelt v. Lewis, 297 Ill 374, 130 NE 785. In order for an encroachment to be intentional, it must be deliberate in the sense that the owner either proceeded to construct after notice of the encroachment, or that in ascertaining the boundary or in constructing or maintaining his building, he so failed in the exercise of any appreciable precaution as to indicate a wilful disregard of the rights of the owner. Nitterauer v. Pulley, 401 Ill 494, 82 NE2d 643; 1 Am Jur2d, Adjoining Landowners, § 134, p 782; 28 ALR2d 679, 705 et seq. § 8. The mere showing that the encroachment exists does not establish that it was intentional.

We have carefully reviewed the record and agree with the finding of the Chancellor that there is not sufficient evidence to support plaintiffs’ thesis that Mrs. Codo proceeded with construction after notice of the encroachment, and we also agree, considering all the facts in the record, that the encroachment is slight. As to whether the precautions taken by Mrs. Codo were so wanting or minimal as to show wilfulness, we note the record shows that her contractor located stakes at the corners of her lot from data on a plat which Mrs. Codo received at the time the tract was purchased in 1963. Measurements and computations were made from this plat by the general contractor and followed in the construction. Nothing in the record indicates that Mrs. Codo or her contractor had reason to know or believe that the plat relied upon was inaccurate or untrustworthy. Whether reliance thereon, considering its source, and whether the contractor’s mode of computing bearings therefrom, and locating them upon the lot, were adequate, or whether Mrs. Codo should have had a new survey made, and whether her contractor should have used a transit in verifying angles, as plaintiffs contend, were issues to be determined by the trier of fact. The Chancellor concluded from evidence that the defendant did make appreciable attempts to locate the boundary, was unaware of miscalculations until after the building was completed, and was not reckless in relying upon the recent plat. We are not permitted to substitute our judgment on these issues of fact for that of the Chancellor unless his findings are palpably against the weight of evidence. We find no such palpable error. Accordingly, the decree of the Circuit Court is affirmed.

Affirmed.

ALLOY, P. J. and STOUDER, J., concur.


author: ALLOY, P. J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Orlen Sims, Defendant-Appellant.
    Gen. No. 65-26.
    Third District.
    December 10, 1965.

      Orlen Sims, pro se, appellant.
    William G. Clark, Attorney General, of Springfield (Richard Stengel, State’s Attorney, of Rock Island, and Peter C. Fieweger, Assistant State’s Attorney, of counsel), for appellee.
   ALLOY, P. J.

Defendant in this cause, Orlen Sims, was indicted for the murder of his wife, Janice Sims, whose death occurred on August 28, 1963. Defendant signed a written plea of guilty to the offense charged, and was sentenced to the Illinois State Penitentiary for a term of not less than 45 years nor more than 90 years. A writ of error was issued by the Supreme Court of this State for review of the judgment of conviction and the cause was thereafter transferred to this court. On appeal in this court, defendant contends that the record of conviction is such that there was no plea of guilty persisted in by defendant, and that the cause should be reversed with directions that defendant be allowed to withdraw the purported plea of guilty and the cause be remanded to the Circuit Court of Rock Island County for further proceedings.

The record in this cause indicates that on October 2, 1963, after defendant had been arraigned, he was represented by counsel who filed a motion requesting that the court impanel a jury to determine the sanity of defendant. The motion was granted and such jury was duly impaneled. After hearing the evidence, the jury returned a verdict finding that defendant was sane at the time of impaneling the jury and was sane at the time of the verdict. Thereafter, on November 15, 1963, defendant appeared in court with his counsel and the attorney informed the court, in presence of defendant, that they were there to waive trial by jury, to waive trial by the court and to enter a plea of guilty to the indictment. The attorney stated that he had advised defendant as to his rights and defendant stated that he had been so advised. The court then asked defendant if he accepted his attorney’s advice and was now proposing to enter a plea of guilty and the record reflects that at that time defendant did not answer. The court at such time asked the defendant if his rights had been explained to him on a number of occasions. Defendant replied • “That’s right.” The court also informed defendant that if he were found guilty, the court would impose punishment which could be imprisonment for a long term. In the presence of defendant, defendant’s attorney informed the court that he had advised defendant that the crime of murder carries a term of 14 years or life or death and stated that he had gone over this matter with defendant a number of times. The court then stated its belief that defendant had knowingly and understanding^ entered his guilty plea and accepted the same, and defendant then acknowledged that his signature was on the written plea of guilty and waiver of jury.

At the hearing thereafter in aggravation and mitigation, the facts relating to the murder of defendant’s wife by defendant with an axe were reviewed by the court and it was indicated that there were several eye witnesses to the crime. There was no recommendation of sentence by the State’s Attorney but .apparently the court took into consideration, at the time of imposing the sentence, the circumstances of the murder.

At the time of the entry of the plea of guilty in the cause before us, it was provided by statute (Ill Rev Stats 1961, c 38, par 732) that a plea of guilty should not be entered until the court had fully explained to the accused the consequences of entering such a plea; after which, if the party persists in pleading guilty, such plea shall be received and recorded. Under Illinois Supreme Court Rule 26(3) it is also provided that the court should not permit a plea of guilty unless it found from proceedings had in open court that the accused understood the nature of the charge against him and the consequences thereof if found guilty. In People v. Kontopoulos, 26 Ill2d 388, 186 NE2d 312, defendant’s assignment of error was, similarly, that the court had failed to comply with the statutory provision and the Supreme Court rule heretofore referred to in admonishing defendant prior to accepting his plea of guilty to reckless homicide. The court there stated, at Page 390:

“The admonishment of the court must be read in a practical and realistic manner. The object of the admonishment is to inform the defendant of the consequences of his plea of guilty and to give him the right to withdraw his plea of guilty if, after hearing the consequences, he desires to be tried by a jury.”

In the case before us, it is apparent from the record that the admonishment complied with the requirements of the statute. Defendant was given a copy of the indictment. On a number of occasions his attorney had advised him of the possible punishment for the crime of murder. The court likewise instructed defendant' that punishment could be imposed for a long term of years. The Trial Court and attorney for defendant had explained to him that he was entitled to a trial by a court or a jury and that in either case it was incumbent upon the State to prove him guilty beyond a reasonable doubt. The State’s Attorney requested that the record show that defendant signed a plea of guilty, and defendant acknowledged to the court that it was his signature on the plea of guilty and the waiver of jury. Defendant never requested a withdrawal of the plea of guilty. On appeal, defendant contends that because he remained silent when asked by the court if he was now proposing to enter a guilty plea, the record fails to show he persisted in his plea of guilty. The purpose of the admonishment of the court was to inform defendant of the consequences of his plea of guilty and to give him the right to withdraw the plea if he desired to do so. Defendant did not request a withdrawal of the plea of guilty. On the record before us, it is apparent that the Trial Court properly admonished the defendant in accordance with the statutory provision and the rule of court prior to accepting and entering his plea of guilty and that defendant thereafter persisted in the plea. We are cognizant of the fact that defendant had a limited fifth grade education and also that a plea of guilty should not be made by silence or by implication. We believe, however, that on the record before us, the Trial Court complied with the statute and rule of court and that the record properly discloses that the defendant understandingly entered a written plea of guilty and thereafter persisted in said plea.

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

Affirmed.

STOUDER and CORYN, JJ., concur.


author: ME. JUSTICE DAVIS

text:
    Carl R. Jensen, Jr., f/u/o Albert D. Kelley, Plaintiff-Appellee, v. New Amsterdam Insurance Company, Defendant-Appellant, and General Fire and Casualty Company, Defendant.
    Gen. No. 64-154.
    Second District.
    December 28, 1965.

      J. V. Schaffenegger, of Chicago (Jack L. Watson, of counsel), for appellant.
    Joseph T. McGuire, Francis P. Flynn, Perz and McGuire, for appellee.
    Gates W. Clancy, of Geneva (Wendell W. Clancy, of counsel), for General Fire and Casualty Company, defendant.
   ME. JUSTICE DAVIS

delivered the opinion of the court.

This is a garnishment action by Carl E. Jensen, Jr., f/u/o Albert D. Kelley, plaintiff-appellee, against the defendant, General Fire and Casualty Company (herein called General), and the defendant-appellant, New Amsterdam Insurance Company (herein called New Amsterdam), wherein the trial court entered judgment against both defendants in the sum of $5,175, plus $301.80 interest and $54 costs. The judgment arose out of an automobile collision in which Kelley was struck by a 1960 Valiant automobile owned by John V. Grogan and driven by Jensen. General insured Grogan and the auto involved in the accident; New Amsterdam insured the driver Jensen.

New Amsterdam has prosecuted this appeal alleging that the policy issued by General to Grogan, covering the Valiant car involved in the accident and driven by Jensen with Grogan’s permission, offered primary coverage to Jensen; that New Amsterdam’s policy provided only “excess” coverage; and that since the policy limits of General were not exceeded by the judgment, only General was liable.

This question involves, among other things, the interpretation of the “other insurance” clauses found in the policies of General and New Amsterdam. These clauses are substantially identical, each providing that:

If the insured has other insurance against a loss covered by this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, (the coverage when driving temporary substitute automobiles or an auto not owned by the insured) . . . shall be excess insurance over any other valid and collectible insurance.

Thus, the “other insurance” clauses of both policies provide that liability coverage shall be prorated with other insurance coverage, except when the insured is driving a temporary substitute auto or a nonowned auto, in which case the coverage is to be “excess” coverage only.

In situations where there are double coverage problems, the ad hoc treatment given “other insurance” clauses by the courts covers a wide spectrum. On one side are the cases which hold, for a variety of reasons, that one insurance policy furnished the primary coverage, and the other, the secondary. These cases then hold the primary insurer liable, and no reduction is made in its exposure by virtue of the “other insurance” clause of its policy. McFarland v. Chicago Exp., 200 F2d 5 (CA 7th, 1952); Zurich General Accident & Liability Ins. Co. v. Clamor, 124 F2d 717 (CCA 7th, 1941); Schweisthal v. Standard Mut. Ins. Co., 48 Ill App2d 226, 198 NE2d 860 (2nd Dist 1964). On the other side are the cases which hold that any attempt to resolve the apparent inconsistencies found in “other insurance” clauses and to determine which is the primary insurer is founded upon circuitous reasoning. In these cases the clauses are held mutually repugnant, are disregarded, and each insurer is held responsible for his pro rata share of the liability. New Amsterdam Cas. Co. v. Certain Underwriters at Lloyds, London, 56 Ill App2d 224, 205 NE2d 735 (1st Dist 1965); Economy Fire & Casualty Co. v. Western States Mut. Ins. Co., 49 Ill App2d 59, 198 NE2d 723 (2nd Dist 1964); Oregon Automobile Ins. Co. v. United States Fidelity & Guaranty Co., 195 F2d 958 (CA 9th, 1952) ; Lamb-Weston, Inc. v. Oregon Automobile Ins. Co., 219 Ore 110, 341 P2d 110 (1959).

The apparent conflict found in the reported cases is attributable in part to the diverse “other insurance” clauses before the courts and applicable in the respective cases. Such variation is classified in Continental Cas. Co. v. New Amsterdam Cas. Co., 28 Ill App2d 489, 171 NE2d 406 (1st Dist 1960), at page 496, where the court, in quoting from Continental Cas. Co. v. Buckeye Union Cas. Co., 143 NE2d 169 (Ct Com Pleas, Ohio, 1957) at pages 174,175, stated:

“The difficulties in interpretation have arisen when both policies contained ‘Other Insurance’ clauses. These seem to fall into three general types: (a) a provision to the effect that in the event of other insurance, the loss shall be borne prorata dependent upon the monetary limits of coverage, which will hereafter be referred to as the pro-rata clause; (b) a provision that the policy shall be excess over any other valid and collectible insurance applicable to the liability, hereafter referred to as the excess clause, and (c) a provision that if there is other valid and collectible insurance the policy shall not apply, hereafter referred to as the escape clause. Thus it is apparent that cases of ‘double insurance’ have and will continue to arise involving pro-rata v. excess, pro-rata v. escape, excess v. escape, excess v. excess and escape v. escape.”

Also see annotation 76 ALR2d 502, et seq.

Further cause for the divergent decisions is that certain courts have construed the respective policies involved in the double coverage problems without consideration of the factual matters relevant to a proper interpretation of the pertinent provisions of such policies, such as: the scope thereof (whether owners or non-owners—see Continental Cas. Co. v. New Amsterdam Cas. Co., 28 Ill App2d 489, 171 NE2d 406 (1st Dist 1960)); the status of the insured under the policy (whether driving as owner of the insured automobile or as a named insured driving a nonowned or substitute automobile—see Economy Fire & Casualty Co. v. Western States Mut. Ins. Co., 49 Ill App2d 59, 198 NE2d 723 (2nd Dist 1964)); and other compelling factual circumstances relevant to a proper interpretation of the policies.

We concede that the criticism of the rationale sometimes employed to arrive at the determination of which insurer, if either, is primarily liable, may be just. (See Gutner, et al., v. Switzerland General Ins. Co. of Zurich, 32 F2d 700 (CA 2nd, 1929); New Amsterdam Cas. Co. v. Hartford Accident & Indemnity Co., 108 F2d 653 (CA 6th, 1940)—which fix liability upon the insurer which first covered the risk; and see Continental Cas. Co. v. Curtis Pub. Co., 94 F2d 710 (CA 3rd, 1938); Michigan Alkali Co. v. Bankers Indemnity Co., et al., 103 F2d 345 (CA 2nd, 1939)—which have held, or indicated, that the specific language of the policies is controlling over the general.) However, even though such reasoning may be specious, we do not believe that it warrants the generalization that where two policies carry like “other insurance,” “pro-rata,” “excess,” “escape,” etc., clauses, such clauses must always be treated as mutually repugnant, and disregarded.

The extent of the limitation of the respective liabilities of General and New Amsterdam, and the conflict, if any, resulting from an attempt to apply the provisions of each policy to a given factual situation, must be determined from the language used in the respective policies. Iowa Nat. Mut. Ins. Co. v. Fidelity & Casualty Co. of N. Y., 62 Ill App2d 297, 301, 210 NE2d 622, (2nd Dist 1965); Continental Cas. Co. v. American Fidelity & Casualty Co., 275 F2d 381, 384 (CA 7th, 1960); McFarland v. Chicago Exp., supra, 7; Zurich General Accident & Liability Ins. Co. v. Clamor, supra, 720. The principles involved in the interpretation and construction of insurance contracts are the same as those involved in construing other contracts. The “other insurance” clauses must be interpreted according to the sense and meaning of the terms which the parties have used. Schweisthal v. Standard Mut. Ins. Co., supra, 230.

Both, of the policies contain substantially identical “other insurance” clauses, and protect against the liability resulting when a person other than the named insured drives the auto described in the policy with the permission of the named insured. Each policy, when read as a whole, clearly attempts to define different exposures to coverage when the described automobile is involved and when liability arises because of coverage to a named insured while driving another automobile. Both policies also provide protection for the named insured when he is driving an auto not owned by him. In this case, however, the policies draw a cogent distinction. If liability results from a named insured driving a nonowned auto, both policies limit their insurance to “excess” coverage and provide secondary coverage in this situation, as well as where a temporary substitute auto is involved. In other situations, the policies provide primary protection, subject only to the qualification that, in event of other valid and collectible insurance, their coverage shall be limited to their pro rata share of the loss.

Under the facts in this case, General insured the auto involved in the collision and thus provided the primary coverage. New Amsterdam covered its insured while driving the nonowned auto only as a secondary, “excess” insurer. Until such time as the limits of General’s policy were exceeded, New Amsterdam’s policy did not provide collectible insurance. There was nothing to prorate under the first clause of the “other insurance” provisions of General’s policy, and it, therefore, was liable for the total loss.

Continental Cas. Co. v. New Amsterdam Cas. Co., 28 Ill App2d 489, 171 NE2d 406 (1st Dist 1960) suggests a conclusion different than that reached here. However, this case is distinguishable in that therein the court was concerned with determining the effect of “other insurance” provisions where the “excess” insurance clauses of each policy were applicable. Under these circumstances, the First District of the Appellate Court held the respective “excess” clauses repugnant, and prorated liability. This decision, however, is not determinative here where the two pertinent “other insurance” provisions are not repugnant.

New Amsterdam Cas. Co. v. Certain Underwriters at Lloyds, London, 56 Ill App2d 224, 205 NE2d 735, also a First District case, likewise distinguishable, held that two “other insurance” clauses were mutually repugnant and prorated liability. In that case, neither insurance policy purported to provide primary coverage under the factual situation. The owner of the car involved was a rent-a-car agency and its policy provided that if anyone other than the agency, the named assured, were driving the car, there would then be no indemnity under the policy if there were other valid and collectible insurance. The driver’s policy provided only “excess” coverage when driving a nonowned auto. Thus, both policies purported to provide only secondary coverage, one through an “escape” clause and one through an “excess” clause. Under the facts, the pro rata provisions of both policies were inapplicable and the court prorated the liability incurred by the driver. Under the factual situation in the case at bar, the primary coverage, prorate clause of General, and the secondary coverage, excess clause of New Amsterdam, are applicable.

This court has previously held that under policies involving “other insurance” clauses substantially the same as the ones at bar, the owner’s policy provided primary coverage and the driver’s policy provided secondary coverage. Schweisthal v. Standard Mut. Ins. Co., 48 Ill App2d 226, 198 NE2d 860 (2nd Dist 1964). The First District has also so held. Fireman’s Fund Indemnity Co. v. Freeport Ins. Co., 30 Ill App2d 69, 173 NE2d 822 (1st Dist 1961).

This court has also held, however, in a case involving “other insurance” clauses not unlike the ones here before us, that the clauses being identical, one policy could not be held to provide the primary insurance and the other the secondary. Economy Fire & Casualty Co. v. Western States Mut. Ins. Co., 49 Ill App2d 59, 198 NE2d 723 (2nd Dist 1964). In so holding we relied on the case of Continental Cas. Co. v. New Amsterdam Cas. Co., 28 Ill App2d 489, 171 NE2d 406 (1st Dist 1960), and stated that it held that where both applicable policies contain the' same “other insurance” provisions, they are to be disregarded as mutually repugnant and each company is to be held liable on a pro rata basis. We there failed to recognize, however, that in Continental the court held that the “excess” insurance provision of each policy was applicable under the factual situation and thus found the clauses repugnant. Again, in Laurie v. Holland America Ins. Co., 31 Ill App2d 437, 176 NE2d 678 (1st Dist 1961), cited by us in Economy, the court had before it two identical and applicable “excess” insurance provisions, which the court indicated were repugnant, but not the determinative issue of the case.

We hereby overrule Economy Fire & Casualty Co. v. Western States Mut. Ins. Co., 49 Ill App2d 59, 198 NE2d 723 (2nd Dist 1964) to the extent that it holds, without reservation, that where both insurance policies contain the same provisions with respect to “other insurance”, they are to be disregarded as mutually repugnant, and liability prorated. We believe it imperative and essential that the scope of the respective policies, the status of the insured thereunder, and all other pertinent factual circumstances attendant with liability under the circumstances of each case, must be considered in connection with the construction of the respective policies. The applicable clauses of the respective policies should not be construed in a factual vacuum.

Where, as here, one policy is found to provide the primary coverage, the “excess” insurance coverage of the secondary insurer is not other “valid and collective” insurance. Thus, the liability of the primary insurer is- not reduced under its pro rata provisions. We here use the words “primary” and “secondary” only after construing the policies according to the guide lines herein set forth and not as an ipse dixit device for establishing liability.

The judgment of the trial court insofar as it relates to New Amsterdam is hereby reversed and judgment is entered herein in favor of New Amsterdam and against the plaintiff; the judgment against General is affirmed, and the order of this court staying the writ of execution against General, which improvidently issued, is hereby vacated and dissolved.

Judgment reversed in part and affirmed in part.

ABRAHAMSON, P. J. and MORAN, J., concur.