text:
    People of the State of Illinois, Plaintiff-Appellee, v. Everett L. Biggs, Defendant-Appellant.
    Gen. No. 10,894.
    Fourth District.
    December 6, 1967.

      Presney & Casper, of Springfield (Paul E. Presney, of counsel), for appellant.
    Charles J. Ryan, State’s Attorney of Morgan County, of Jacksonville, for appellee.
   MR. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court.

This appeal is to review a sentence of not less than twelve nor more than thirty years imposed upon the defendant upon his plea of guilty for the crime of armed robbery.

The defendant and another, one Grigsby, committed an armed robbery of the National Food Store in Jacksonville, Illinois, in August of 1965. According to the defendant’s statement at the hearing in mitigation, his accomplice actually entered the store, while armed, and committed the robbery. The defendant remained outside in the car and drove the vehicle in an unsuccessful effort to elude law-enforcement officials. No question is presented here as to the defendant’s guilt as a principal.

Rather, the defendant claims that his participation was not as involved or as reprehensible as that of his partner and that, notwithstanding this, the partner received a less severe sentence, and it is accordingly urged that the sentence in this case is excessive. Error is also claimed in that the trial court considered subsequent offenses of the defendant at the hearing in aggravation and mitigation.

Section 121-9 (b) (4) of c 38, Ill Rev Stats 1965, now found as Rule 615, subsection (b) (4) of the Supreme Court Rules, grants power to reviewing courts, on appeal, to reduce the punishment imposed by the trial court. It is urged that this court should exercise that power in this case. This record shows that the accomplice received a sentence of not less than two nor more than ten years for the same offense.

It appears from this record that the trial court conducted an extensive hearing in aggravation and in mitigation. The defendant sought to have the sentence imposed run concurrently with a sentence of the federal district court of 18 years for the crime of bank robbery. In connection with that request, the trial court learned of a bank robbery in Springfield, Illinois, by the defendant, as well as hearing of participation by the defendant in a robbery in Tulsa, Oklahoma, with two other individuals. The two subsequent offenses occurred after the defendant was released on bond pending hearing and trial in this case.

Inquiry by the trial court ascertained information from the defendant as to his military record — which was good —his family, home, background, employment record, and his prior criminal activities, of which there were none of any significance.

It is suggested under the authority of the majority opinion in People v. Steg, 69 Ill App2d 188, 215 NE2d 854 (3d Dist 1966), that equal participants in a criminal venture should receive the same or closely similar sentences. To so hold presupposes equal individuals equally susceptible to the same prospects of rehabilitation and an absence from the record of some reason for differences in sentencing.

In People v. Spann, 20 Ill2d 338, 169 NE2d 781 (1960), the Supreme Court of Illinois quoted, with approval, Williams v. New York, 337 US 241, 247, 69 S Ct 1079, 1083 (1949), language to the effect that a sentencing judge is not confined to the narrow issues of guilt or innocence in arriving at an appropriate individualized sentence. Relevant — if not essential — to this task is possession of the fullest information possible concerning the defendant’s life and characteristics. Rigid adherence to restrictive rules of evidence applicable to the trial has no place in searching for information meaningful to the trial judge for use in arriving at a sentence. It seems to us abundantly clear that the trial judge is not only authorized to consider the subsequent criminal conduct of the defendant, but that his failure to do so could well result in sentencing absent the requisite relevant and material information. There was no error in considering the subsequent offenses.

We do not have, in this record, any basis to compare this defendant with Grigsby, nor is it necessary that we do so. If sentences are to be individualized, we need only consider this defendant, this offense, his background, his prospects of rehabilitation and his record of criminal or antisocial conduct. That is in this record.

From this record, we can ascertain that this defendant, aged 31 years at the date of sentencing, with an excellent military background, with a record free from criminal conduct, all at once and without reasonable explanation, undertook a course of criminal conduct undeniably highly sophisticated in nature. The instant offense was an armed robbery of a large store. It’s not debatable that solo bank robbery while out on bail is sophisticated criminal conduct.

In imposing sentence in this case, the trial court entered appropriate orders so that the state sentence could be served concurrently with the 18-year federal sentence. Parole eligibility on both would approximately coincide. We find no basis to use the authority of this court in connection with this sentence.

The judgment and sentence of the circuit court of Morgan County is affirmed.

Affirmed.

SMITH and TRAPP, JJ., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE CRAVEN

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William R. Flynn, Defendant-Appellant.
    Gen. No. 10,895.
    Fourth District.
    December 6, 1967.

      Robert S. Cohen, of Giffin, Winning, Lindner & New-kirk, of Springfield, for appellant.
    Charles J. Ryan, State’s Attorney of Morgan County, of Jacksonville, for appellee.
   MR. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court.

The defendant appeals his conviction, in a jury trial, for the offense of robbery. A sentence of not less than two nor more than ten years was imposed. It is the defendant’s assertion in this court that the State failed to prove his guilt beyond a reasonable doubt, that the trial court committed reversible error by its refusal to give certain instructions, and finally that the sentence is too severe considering the prior criminal record of the defendant and the facts of this offense.

At the trial, one Richard Cruzan, the victim of a robbery, identified the defendant as the perpetrator of the offense in consort with a companion. The story related by the victim indicates that he entered a restaurant or diner in Meredosia, Illinois, at 10 a. m. on April 21, 1966. Alberta Cochrane, a waitress, served the defendant. At the time the victim was present in the restaurant, the defendant and another man were present. The victim, in the course of a conversation with the waitress, stated his intentions with reference to checking in a cottage at a beach and outlined his proposed morning activities with reference to certain stops he was then to make. The victim was then engaged in the business of selling insurance.

The testimony further indicates that the defendant and his companion left the restaurant at approximately the same time as the victim, around 10:20 a. m. Cruzan followed the itinerary discussed at the restaurant, went to call on a client, and then reentered his car and drove north toward an area called “Sunset Beach.” In the course of his travels, he came upon a car stopped in the middle of the road. Cruzan stopped his car, got out and walked toward a man standing next to the apparently stalled or disabled vehicle. As he reached the car, Cruzan was grabbed from behind and beaten about the head with a weapon he described as a sock filled with some hard object. The beating caused his loss of consciousness. When he regained consciousness, some $350 that he had on his person was missing.

The victim identified the defendant as one of his assailants and described the automobile that he had observed on the road and an object he observed in the car.

Mrs. Cochrane’s testimony corroborated that of the victim insofar as it related to the activities in and about the restaurant.

The defendant sought to establish an alibi. One witness, a banker, testified that the defendant arranged for and made a loan on the day preceding the robbery in the amount of $100 for the purpose of purchasing an automobile. Other witnesses called by the defendant testified as to their activities on the date of the robbery, their association with the defendant on that date in connection with title transfer or motor-vehicle license-plate transfer in Springfield and the route traveled to and from Springfield, and this testimony, if believed, would so locate the defendant as of the time of the robbery to make it physically impossible for him to have been at the scene of the offense.

It is, of course, well established that an alibi need not be shown beyond a reasonable doubt and that the defendant is entitled to acquittal if all of the evidence, including that on the issue of alibi, raises a reasonable doubt as to guilt. As stated in ILP, Criminal Law §469, at 55-56:

“There are several decisions to the effect that evidence fairly tending to establish an alibi ‘can not be disregarded’ where the only contradicting evidence rests upon the identity of the accused as the person who committed the crime charged. However, a study of these decisions and of those plainly holding that identification evidence may support a conviction notwithstanding the defense of alibi, leads to the conviction that a case wherein the defense of alibi is raised must be judged on the whole evidence and if there is a reasonable doubt of guilt because of uncertainty in identification the evidence is insufficient, but if the identification testimony is free from doubt it may overcome alibi testimony. The number of witnesses on either side is not of controlling importance, and the fact that alibi testimony is given by interested persons may affect the weight of such testimony, but does not require that it be completely discredited.” (Citations omitted.)

In this case, the identification testimony is positive. The question then becomes one not of the number of witnesses who testified either for the prosecution or the defense, but rather, a question of credibility. People v. Setzke, 22 Ill2d 582, 177 NE2d 168 (1961). Judgment as to the credibility of witnesses is for the trier of fact. We cannot say from our examination of this record that the defense of alibi was so conclusive as to raise a reasonable doubt warranting this court to reverse the conviction.

The defendant offered and the trial court refused the following instruction:

“The jury is instructed that it is incumbent upon the prosecution to prove every material allegation of the indictment as therein charged. Nothing is to be presumed or taken by implication against the defendant. The law presumes him innocent of the crime with which he is charged until he is proven guilty by competent evidence; and if the evidence in this case leaves upon the minds of the jury any reasonable doubt of the defendant’s guilt, the law makes it your duty to acquit him.”

The instruction was refused not because it was an incorrect statement of the law but because the matters sought to be covered by the instruction were covered by other instructions. Our examination of all of the instructions given establishes that that which was sought to be covered by the refused instruction was, in fact, covered by the given instructions. Under such circumstances, it was not error to refuse the offered instruction.

The final contention is that the sentence is excessive. In this case, the trial court had the benefit of evidence heard on the substantive offense, a competency proceeding and a motion to suppress. The defendant had received psychological testing and such information as was obtained was fully explored in the proceedings in court. The defendant was classed as a severe mental defective. The defendant’s prior criminal ’ecord indicates freedom from prior felony conviction.

A request for probation was made, a probation report was obtained and a thorough examination was made by the court relative to the desirability of probation in this case, considering the offense and the prospects of treatment while incarcerated as distinct from supervision on probation. The defendant’s family history and associations were explored. His training for employment and his present living circumstances were explored. Ultimately, the court denied probation and imposed the sentence of not less than two nor more than ten years. The court computed the time that the defendant had been in custody and correctly observed that the defendant would get credit for that time.

The sentence imposed was explored as to parole eligibility and the desirability for ultimate supervision before a complete return to society.

We find no deficiency in this record of matters to be considered on imposing sentence nor any reason to interfere with the sentence. That which should be considered was considered. The court had full knowledge of the defendant and his background, as much so as could possibly be obtained even with presentence diagnostic studies. See People v. Harden, 78 Ill App2d 431, 222 NE2d 693 (4th Dist 1967); People v. Nelson, 87 Ill App2d 199, 231 NE2d 115 (4th Dist 1967); People v. Tice, 89 Ill App 2d 313, 231 NE2d 607 (4th Dist 1967). For the above and foregoing reasons, the judgment of the circuit court of Morgan County is affirmed.

Affirmed.

SMITH and TRAPP, JJ., concur.


text:
    Stephen P. Wills, a Minor, by Orville Wills, His Father and Next Friend, Plaintiff-Appellant, v. Lewis Metz, Individually, Lewis Metz as Road Commissioner of Fayette Township, Livingston County, Illinois, Fayette Township in Livingston County, Illinois, and Livingston County in the State of Illinois, Defendants-Appellees.
    Gen. No. 10,901.
    Fourth District.
    December 6, 1967.

      S. F. Dolgin, of Fairbury, and Daniel Karlin, of Chicago, for appellant.
    Chester Crabtree, State’s Attorney of Livingston County, of Pontiac, and Adsit, Thompson, Strock & Strong, of Pontiac, for appellees.
   MR. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court.

Plaintiff’s second amended complaint for personal injuries and property damage against the named defendants was dismissed and judgment entered for the defendants. The action of the circuit court was based solely upon the fact that the complaint was found not to state a cause of action “by reason of the fact that the . . . Plaintiff failed to serve notice on the Defendants, or any of them, as provided and required by the provisions of Chapter 85, Section 8-102, Illinois Revised Statutes.”

This cause of action arose out of an occurrence on October 19, 1965. The plaintiff was then a minor, having been born on the 27th day of November, 1945. The complaint was filed on August 23, 1966, more than three months prior to the plaintiff’s twenty-first birthday. The complaint was filed by the plaintiff’s father as his next friend. The only question presented by this appeal is whether or not the plaintiff, as a minor, was required to comply with the notice provisions of the Local Governmental and Governmental Employees Tort Immunity Act. (Ill Rev Stats 1965, c 85, § 8-102.)

This statute, which became effective on August 13, 1965, is essentially the same insofar as here material to earlier statutes that required notices of claims based on injuries. See Ill Rev Stats 1965, c 122, § 823; Ill Rev Stats 1963, c 24, § 1-4-2; Ill Rev Stats 1965, c 111½, § 341; Ill Rev Stats 1965, c 37, § 439.22-1.

In Haymes v. Catholic Bishop of Chicago, 33 Ill2d 425, 211 NE2d 690 (1965), the Illinois Supreme Court discussed the notice requirements of the School Tort Liability Act, and the issue there presented was whether the requirement of giving written notice of injury within six months of the date of injury was binding on minor claimants. The court held that it was not and stated at 428 (211 NE2d at 692):

“Moreover we agree with the appellate court that the language of section 3 is virtually identical with the notice-of-claim provision of the Cities and Villages Act (Ill Rev Stats 1961, chap 24, par 1-4-2), which statute, with only minor changes, is the same today as at the time of enactment in 1905. In 1918, this court in McDonald v. City of Spring Valley, 285 Ill 52, held the notice provision of the Cities and Villages Act not applicable to minors, and this case has been followed without exception since. (See Doerr v. City of Freeport, 239 Ill App 560; Sobieski v. City of Chicago, 234 Ill App 382; Carlson v. Village of Glen Ellyn, 21 Ill App2d 335.) It is apparent to us that the legislature in enacting section 3 of the School Tort Liability Act was aware of our holding in McDonald, and therefore must have intended that section not to be applicable to minor claimants. If notice were to be required of a minor who cannot make a legally binding appointment of an agent or attorney, the legislature could have provided for notice by a next friend or legal guardian, but it has not seen fit so to provide.
“We therefore hold that sections 3 and 4 of the School Tort Liability Act are not applicable to or binding upon the minor plaintiff here.”

That decision is determinative of this case. The defendants here urge that in McDonald and all of the subsequent cases relying on McDonald, the minor plaintiff was, in fact, physically or mentally incapable of compliance with the provisions by reason of young and tender years and that the cases are applicable only to minors of a similar mental or physical circumstance as the plaintiffs in those cases. They then urge that the plaintiff here was 19 years, 10 months, and 22 days of age, and that no reason for noncompliance with the notice requirement is suggested in the sense of a disability and that the plaintiff was old enough to drive, to enter military service, accept employment, enter into various other contractual relationships, and further urge that he should not be excused from giving notice required by the here applicable statute.

We read the Haymes case and its predecessors as making a distinction between minors and adults. The line of demarcation is not one of physical or mental capacity to give the notice but one of ascertaining whether or not the plaintiff is or is not a minor. In this case, the plaintiff was a minor and the notice requirement of section 8-102 was not applicable to nor binding upon him. The judgment of the circuit court of Livingston County is reversed and this cause is remanded to that court for further proceedings in accordance with the views expressed herein.

Reversed and remanded with directions.

SMITH and TRAPP, JJ., concur.


author: PER CURIAM.

text:
    Rose Mund, Individually and as Executor of the Last Will and Testament of Sarah Kanner, Deceased, Plaintiff-Appellee, v. Mandel Friedman, et al., Individually and as Administrator of the Estate of Yoman Bemie Friedman, Deceased, Bernard Friedman, Darco, Inc., an Illinois Corporation, and Marguerite Betty Miller, Defendants, Mandel Friedman, Defendant-Appellant. The City of Springfield, an Illinois Municipal Corporation, Plaintiff-Appellee, v. Isadore K. Friedman, a/k/a I. Kanner Friedman, et al., Individually and as Executor of the Estate of Sarah Kanner, Deceased, Esther Friedman, et al., The First National Bank of Springfield, a Corporation, The Illinois National Bank of Springfield, et al., Defendants, Mandel Friedman and Esther Friedman, Defendants-Appellants.
    Gen. No. 10,846.
    Fourth District.
    December 6,1967.
    Rehearing denied January 23, 1968.

      Earl S. Hodges, of Springfield (Conrad Noll, Jr., of counsel), for appellants.
    Graham & Graham, and Simon L. Friedman, of Springfield, for appellee.
   PER CURIAM.

Sarah Kanner, a resident of Springfield, executed her Last Will and Testament on July 16, 1936, and thereafter, on May 29, 1940, and September 9, 1946, she executed codicils thereto. Following her death on November 9, 1947, her will and codicils were duly admitted to probate. On July 25, 1963, Rose Mund, a beneficiary, filed the instant complaint praying for the partition of certain premises described in the will. Mandel Friedman, a defendant, answered the complaint and filed a counterclaim seeking a construction and interpretation of said will and codicils. Replies were filed to the counterclaim, and on December 3,1963, the cause was referred to the Master in Chancery. This order, however, was subsequently vacated, and the cause heard by the court, resulting in a decree to reverse which Mandel Friedman appeals.

Counsel for appellant states that the sole question presented to this court for consideration is the construction and interpretation of the last will of Sarah Kanner, particularly, paragraphs 6 to 14 inclusive and the paragraphs alluding thereto in the two codicils. These paragraphs are:

“SIXTH
“I give, devise and bequeath to my beloved nephew, Simon Sweetman Friedman, the building known and described as 803-805 East Jefferson Street, Springfield, Illinois, and the building known and described as 1130 South Sixth Street, Springfield, Illinois, to be his absolutely and forever.
“SEVENTH
“I give, devise and bequeath to my beloved nephew, Archie Friedman, the building known and described as 721 East Washington Street, Springfield, Illinois; the building known and described as 1100-1104 East Jefferson Street, Springfield, Illinois; the building known and described as 118-120 North Eleventh Street, Springfield, Illinois, to be his absolutely and forever.
“EIGHTH
“I give, devise and bequeath to my beloved nephew Handel Friedman, the building and premises known and described as 731 East Washington Street, Springfield, Illinois, and extending from the lot line thereof, 157 feet north; the building known and described as 1912 West Grand Avenue South, Springfield, Illinois; the building known and described as 1237 North Second Street, Springfield, Illinois, to be his absolutely and forever.
“NINTH
“I give, devise and bequeath to my beloved nephew, Bernard Friedman, the building and premises known and described as 727 East Washington Street, Springfield, Illinois, and extending from the lot line thereof, 157 feet north; the apartment building known and described as 509-511 North Sixth Street, Springfield, Illinois; Lot Sixteen (16), Block Eighteen (18) of Well’s and Peck’s Addition to the City of Springfield, situated in the County of Sangamon, State of Illinois, to be his absolutely and forever.
“TENTH
“I give, devise and bequeath to my beloved nephew, Jacob Rufus Friedman, the building and premises known and described as 729 East Washington Street, Springfield, Illinois, and extending from the lot line thereof, 157 feet north; the building known and described as 726 East Washington Street, Springfield, Illinois; the building known and described as 714 East Madison Street, Springfield, Illinois; the building known and described as 716 East Madison Street, Springfield, Illinois, the building known and described as 720 East Madison Street, Springfield, Illinois, and also the lot and ground 40 feet wide and 157 feet deep immediately to the west of the property hereinbefore described as 714 East Madison Street, Springfield, Illinois, to be his absolutely and forever.
“ELEVENTH
“I give, devise and bequeath to my beloved nephew, Adolph Friedman, the building and premises known and described as 725 East Washington Street, Springfield, Illinois, and extending from the lot line thereof 157 feet north; the building known and described as 1921 South Seventh Street, Springfield, Illinois; the building known and described as 913 East Madison Street, Springfield, Illinois; the building known and described as 313 North Eleventh Street, Springfield, Illinois; the building known and described as 317 North Eleventh Street, Springfield, Illinois; also the second lot west of Eleventh Street, on the south side of Mason Street and being 40 feet by 157 feet, to be his absolutely and forever.
“TWELFTH
“I give, devise and bequeath to my beloved niece, Marguerite Betty Miller, the building known and described as 400 West Allen Street, Springfield, Illinois; the building known and described as 419 North Sixth Street, Springfield, Illinois; the building known and described as 1125 East Carpenter Street, Springfield, Illinois; the building known and described as 1129 East Carpenter Street, Springfield, Illinois ; the building known and described as 1000 East Mason Street, Springfield, Illinois; the building known and described as 324^326 North Tenth Street, Springfield, Illinois, to be hers absolutely and forever.
“THIRTEENTH
“I give, devise and bequeath to my beloved niece, Rosie Mund, the building known and described as 415 North Sixth Street, Springfield, Illinois; the building known and described as 427 North Sixth Street, Springfield, Illinois; the earrings, diamonds and pin which I have been wearing, to be hers absolutely and forever.
“FOURTEENTH
“I give, devise and bequeath to by beloved niece, Hannah Feir, the building known and described as 223 North Sixth Street, Springfield, Illinois; the building known and described as 419 North Seventh Street, Springfield, Illinois, to be hers absolutely and forever.”

The codicil of May 29, 1940, after declaring it to be a codicil of her will of July 16,1936, provided:

“WHEREAS, by the said Last Will and Testament, I gave, bequeathed and devised unto my beloved nephews, Adolph Friedman, Bernard Friedman, Jacob Rufus Friedman and Handel Friedman, respectively, the buildings and premises known and described respectively as 725 East Washington Street, 727 East Washington Street, 729 East Washington Street and 731 East Washington Street, Springfield, Illinois,
“AND, WHEREAS, to the north of the said buildings and premises so given, devised and bequeathed, there is a driveway and alley,
“AND, WHEREAS, it is my intention to preserve the said driveway and alley for the sole use and benefit of all of my said nephews and of all future owners thereof of said property hereinbefore mentioned.
“NOW, I do hereby give, devise and bequeath unto my said nephews, Adolph Friedman, Bernard Friedman, Jacob Rufus Friedman and Handel Friedman, a perpetual easement over the said driveway and said alley to the north of the said premises in this said Codicil mentioned, for the sole use and benefit of them, my said nephews, Adolph Friedman, Bernard Friedman, Jacob Rufus Friedman and Handel Friedman, and all future owners of said buildings and premises in this Codicil hereinbefore described.”

The second codicil executed on September 9, 1946, provided :

“AND, WHEREAS, since the execution of my said Last Will and Testament, I have acquired additional real estate, to-wit: 117 North Sixth Street, Springfield, Illinois, now, I do hereby give and devise unto my said beloved nephew, Handel Friedman, the said real estate, to-wit: 117 North Sixth Street, Springfield, Illinois, to be his absolutely and forever.
“AND, WHEREAS, by clause nineteenth (19th) of my said Last Will and Testament, I bequeathed and devised certain real estate and personal property, also the rest, residue and remainder of my estate, real, personal and mixed, to my beloved nephew, Simon Sweetman Friedman, in trust, for my said brother, Henry Isaac Friedman, now, I do hereby rescind and annul said bequest and devise, said bequests and devises mentioned in said Paragraph Nineteen (19) of my said Last Will and Testament, and I do hereby give, devise, and bequeath unto my said beloved niece, Rosie Mund, and my said beloved nephew, Handel Friedman, all of said property, real, personal and mixed, and the rest, residue and remainder of my estate, real, personal and mixed, to be theirs, equally, share and share alike.
“AND, WHEREAS, by clause Ninth (9th) of my said Last Will and Testament, I gave, devised and bequeathed to my nephew, Handel Friedman, the building and premises known and described as 731 East Washington Street, Springfield, Illinois, and extending from the lot line thereof, 157 feet north, now, I do give, devise and bequeath, in lieu thereof, merely the said building known and described as 731 East Washington Street, and the buildings known and described as 109, 111, 113, and 115 North Eighth Street, Springfield, Illinois, to be his absolutely and forever.
“AND, WHEREAS, in said Last Will and Testament, by clause Tenth (10th) thereof, I gave, devised and bequeathed to my beloved nephew, Bernard Friedman, the building and premises known and described as 727 East Washington Street, Springfield, Illinois, and extending from the lot line thereof, 157 feet north, now, I do give, devise and bequeath, in lieu thereof, merely the said building known and described as 727 East Washington Street, Springfield, Illinois, to be his absolutely and forever.
“AND, WHEREAS, in my said Last Will and Testament, by clause Eleventh (11th) thereof, I gave, devised and bequeathed to my beloved nephew, Jacob Rufus Friedman, the building and premises known and described as 729 East Washington Street, Springfield, Illinois, and extending from the lot line thereof, 157 feet north, now, I do give, devise and bequeath, in lieu thereof, merely the said building known and described as 729 East Washington Street, Springfield, Illinois, to be his absolutely and forever.
“AND, WHEREAS, in my said Last Will and Testament, by clause Twelfth (12th) thereof, I gave, devised and bequeathed to my beloved nephew, Adolph Friedman, the building and premises known and described as 725 East Washington Street, Springfield, Illinois, and extending from the lot line thereof 157 feet north, now, I do give, devise and bequeath, in lieu thereof, merely the said building known and described as 725 East Washington Street, Springfield, Illinois, to be his absolutely and forever.”

The Fifteenth, Sixteenth and Seventeenth Paragraphs of her will made money bequests to various named parties, and by the Eighteenth Paragraph the testator disposed of the remainder of her personal property.

By the Nineteenth (19th) Clause or Paragraph the testator gave, devised and bequeathed the building known and described as 723 East Washington Street, Springfield, Illinois, the apartment building known and described as 425 North Sixth Street, Springfield, Illinois, a one-eleventh part of the remainder of her personal estate mentioned in Paragraph Eighteen, and devised all the rest, residue and remainder of her estate, real, personal and mixed, of whatever nature and wheresoever situated, to Simon Sweetman Friedman, her nephew, in trust with directions that the trustee pay the net income of the trust fund to her brother, Henry Isaac Friedman, so long as he shall live, and upon his death the trust would terminate.

Counsel for the respective parties agree that where the testator used the words “building and premises,” the named donee acquired the building and the land upon which the structure rests.

It is the contention of appellant, (a) that where the words: “I give, devise and bequeath to . . . the building known and described as . . . ,” followed by the street number, the testator intended to limit the gift to the building only, and did not include the land upon which the building stands; and (b) that by the Second Codicil the testator revoked the gifts of the designated buildings and premises to each of her four nephews, and limited her gift to each of them to the building only, at the designated street number, and that the land upon which the buildings stand passed by the residuary clause to other donees.

Counsel for appellant state that this will might have been drafted with more skill and precision, but that “it and the two codicils provide a complete but rather complicated plan for distributing the estate of Sarah Kanner.” Counsel insist that this court should take into consideration the fact that this will and the two codicils were drafted by “an outstanding and capable attorney, who was able to use the correct terms to express the intent of the testator, and who, for years had been the testator’s legal advisor.” Counsel also insist that the intention of the testator is plainly expressed by the language employed, and that by giving the word “merely,” and the phrases “the building,” “the building and premises,” and “in lieu thereof” their ordinary and well-understood meaning, the problem of resolving the intention of testator is relatively uncomplicated.

Counsel for appellee insist that wherever the testator used the word “devise” followed by the words “building known and described as,” and identified the premises by number and street, concluding with the words “to be his absolutely and forever,” she did not intend to limit her gift to the designated building but included the land upon which the building stood, and such additional land as is reasonably necessary for its enjoyment. Counsel insists that this construction is the only one which affords symmetry to the intent of the testator, and that common sense requires that the decree be affirmed.

36 ILP, Wills, § 282, states that “A devise of a building may carry with it land adjacent thereto and used in connection therewith,” and cites in support thereof Fuller v. Fuller, 315 Ill 214, 146 NE 174. The Fuller case held that where a testator used the term “the Central Hotel,” she intended to devise “not only the building and the ground upon which the hotel stood but also the parcel of land lying to the south thereof, which was used by testatrix, at the time of the making of the will, in connection with and as a part of the hotel property.” The opinion in that case cited several cases from other jurisdictions, some of which we will hereafter refer to.

In Schoendienst v. Fink, 58 Ill App2d 203, 207 NE2d 325, the testator used this language:

“I give and bequeath our home at 710 Fairfax Street in Carlyle, Illinois, to Scott Lodge No. 79 A F & A M of Carlyle, Illinois, and Carlyle Chapter Order of the Eastern Star 518 of Carlyle, Illinois, with all contents except money, stocks and bonds and other personal clothing.”

Since the word “devise” was not used the executor sought a determination of whether the donees were given the fee to the real estate, or was the gift only of the home and contents, thus effecting a severance of the improvements from the real estate. The court held that the named donees were the owners in fee of the real estate located at 710 Fairfax Street, as well as the building located thereon, together with its contents, except money, stocks, bonds and clothing. In its opinion the court cited Eichman v. Meier, 213 Ill 507, 72 NE 1121, where it is said (pp 520-521) that the word “devise” is usually employed to denote a gift by will of real estate, or an interest therein; that the word “bequest” may mean any gift by will, whether it consists of personal or real property, and that the word “give” has the largest possible signification, and is applicable as well to real as personal estate. The court also cited Wilson v. Wilson, 261 Ill 174, 103 NE 743, where it is said that in construing wills, courts will give to the words employed the meaning intended by the testator without regard to its strict technical meaning.

Gilbert v. McCreary, 87 W Va 56, 104 SE 273, 12 ALE 1172, cited and referred to in Fuller v. Fuller, 315 Ill 214, 146 NE 174, held that a clause in a will which bequeathed property in the City of Parkersburg, West Virginia, referring to it as “the house and lot known as No. 114 Tenth Street,” carried with it not only the house but also whatever land reasonably and necessarily belonged to it as a place of residence. In the course of its opinion the court said:

“Although the lot is not numbered, and the number of the house is not a lot number, it clearly suffices for designation of the subject of the devise. The house is part of the property devised, and its designation in the will as ‘No. 114 Tenth Street’ constitutes an index or means by which it can be found and identified. A gift thereof, by such designation, carries with it whatever reasonably and necessarily belongs to it as a place of residence, including the ground on which it stands and such additional ground as has been defined as belonging to it, by use thereof in connection with it. There are some decisions literally importing that the grant of a house, mill, barn or other structure carries only so much of the soil as it actually covers. Crawfordsville v. Boots, 76 Ind 32; Endsley v. State, 76 Ind 467; Allen v. Scott, 21 Pick (Mass) 25, 32 Am Dec 238; Bacon v. Bowdoin, 22 Pick (Mass) 401; Johnson v. Rayner, 6 Gray (Mass) 111. It is here suggested that these cases may stop short of full definition of the grants, because it was unnecessary to determine their extent. It met the requirements of the cases to say the grants carried land.
“The English cases construing wills leave no doubt that a devise of a house carries all the land necessary to full use and enjoyment thereof. The contrary has never been so much as suggested. More than was really necessary or required for convenience has been held to have passed by such a devise.” (See annotation following the report of this case in 12 ALR beginning on page 1179.)

In Hartfield v. Pennsylvania Co. for Ins. on Lives and Granting Annuities, 89 NJ Eq 45, 103 A 804, the will of the testator directed that his wife

“. . . be suffered and permitted to occupy and have the use of my house in Beverly and its contents for and during the full term of her natural life, . . .”

It appeared that testator first acquired a tract of land in Beverly fronting 80 feet on Jennings Street and extending easterly in depth 120 feet. Subsequently he acquired an adjacent tract of land in the shape of the letter L to the north and in the rear of the land first purchased. He erected a dwelling on the first tract, and in a proceeding to quiet title it was contended that the tract of land secondly purchased did not pass by the quoted portion of the will. The court held that the land embraced within the boundaries of the two conveyances was used by the testator exclusively as a residence property, formed a part of his home, and passed by the devise. In the course of the opinion the court cited Banning v. Sisters of St. Francis, 35 NJ Eq 392, which held that the following devise:

“I will my house to ... , No. 160 Rose street, Trenton, . . .”

was a devise of the land of testatrix on which the house stood, and all of the land adjacent to the house that had been used in connection with the house.

Whitney v. Olney, 3 Mason 280, 29 Fed Gas 1108, was an ejectment proceeding. In that case the will of Christopher C. Olney contained the clause:

“Further it is my will, that my said sons, Christopher and Nathaniel, shall have and possess my two paper-mills, namely, the Rising Sun and the Brown George, so called; and I devise the same to them as tenants in common in equal shares during the times of their natural life, together with all the machinery and appurtenances to said mills at the time of my decease.”

The will then provided that at the death of his sons with issue, then such issue should take in fee simple all the estate he had devised to his said sons. It was contended that a moiety of the buildings only passed, and that no part of the land under, or belonging to and used with the papermills passed by this devise. In holding otherwise, the court, speaking by Mr. Justice Story, said:

“My opinion is, that by the devise of the mill and its appurtenances all the land under the mill, and necessary for the use of it, and commonly used with it, passed to the devisees. ... I do not proceed upon the ground, that the land was a mere appurtenance to the mill; but that it was parcel thereof. . . .
“. . . I lay no stress whatsoever upon the words in the devise, ‘with the appurtenances.’ The land under the mill and adjacent thereto, so far as necessary to its use, and commonly used with it, passed by force of the word ‘mill.’ It is not necessary, in order to pass lands, that they should be specially designated by that name. A grant of a messuage conveys all the land within the curtilage thereof; so the grant of a house. Shep Touch 94; Com Dig ‘Grant,’ E 6.
“. . . The good sense of the doctrine on this subject is, that under the grant of a thing, whatever is parcel of it, or of the essence of it, or necessary to its beneficial use and enjoyment, or in common.intendment is included in it, passes to the grantee. In common sense and in legal interpretation, a mill does not mean merely the building in which the business is carried on, but includes the site, dam, and other things annexed to the freehold, necessary for its beneficial enjoyment.”

In Marston v. Stickney, 58 NH 609, it was said that a grant or devise of a dwelling house will convey the buildings belonging to it, its curtilage, garden, orchard and the land on which the house is built, with reasonable limitations.

In Dudley v. Town of Milton, a Massachusetts case, reported in 176 Mass 167, 57 NE 355, it appeared that a mother devised to her daughter, “. . . the house in which she now lives, situated on Brook road, Milton, . . .” The court, in its opinion, said that these words were capable of a meaning wide enough to include a lot on the opposite side of the road, improved with a barn, as well as the house and lot where the daughter lived.

Counsel for appellant state that these cases “focus attention upon the use of the words home, house, homestead and mill,” and insist that there is nothing said in the cases referred to which should persuade a court to conclude that the testator in the instant case, when she used the word “building” intended her donee to take the land upon which the building stood, or any land used in connection therewith.

A house, however, is a building and so is a mill, and under the authorities cited when it appears that land is occupied and improved by a building and the building is the subject of a devise, the fee in the land upon which the building stands passes to the donee unless it clearly appears that such was not the intention of the testator. In Bruen v. People, 206 Ill 417, 69 NE 24, it is said (at p 423) that a building is an edifice constructed for use, or convenience as a house, church or shop; that it must be permanent and designed for habitation of men or animals, or the shelter of property. Bouvier defines a building as an edifice for use in the position in which it is fixed; that every building is an accessory to the soil, and is, therefore, real estate and belongs to the owner of the soil.

The City of Crawfordsville v. Boots, 76 Ind 32, was a proceeding to enforce a lien for the price of materials furnished in connection with the construction of a building and it was contended that the notice of intention to hold a lien did not contain a sufficient description of the premises. It appeared that the notice contained this description:

“A part of lot No. 110, as the same is designated on the original plat of the town, now city, of Crawfordsville, and the building situated thereon, lately erected, known as the City Building. . .

In its opinion the court, citing Endsley v. State, 76 Ind 467, and City of Crawfordsville v. Johnson, 51 Ind 397, said:

“This we deem a sufficient description of so much of the lot as was covered by the building, which is sufficiently described. The conveyance of a building conveys the land under the building.”

The author of the article on “Building,” 12 CJS, beginning at page 378, says that the noun “building” is derived from the Anglo-Saxon “bold,” meaning a dwelling; that the term is comprehensive, generic, and, in its use may be ambiguous, having no universal, inflexible meaning which will apply to all cases, but depending for its meaning upon the peculiar facts and circumstances of each particular case; that within its ordinary and legal signification the word includes the basement, walls, and all space within the walls and means an erection designed to stand more or less permanently and covering a space of land for use as a dwelling, storehouse, factory, shelter for beast, or some other useful purpose. The term “building” has been held equivalent to, or synonymous with, “house,” “place,” “premises,” “residence,” and “structure.” The term is not always limited to the structure itself, but sometimes includes the land on which the building stands, and the land within the enclosure belonging to the building and appropriate to its use.

The gift of the buildings here was absolute and unlimited. If a severance was had, the building would become personal property, and the donee would be entitled to the use of the building as located, or to receive all rents or income arising therefrom, and could dispose of it as he pleased by bill of sale or will. The building could be maintained and kept in repair indefinitely and the result would be that the land upon which the several buildings stand would be useless to its owner as long as the building remains, and the donee of the land would receive no benefit from the gift of the testator.

In Ryan v. Allen, 120 Ill 648, 12 NE 65, at pp 652-653, it appeared that the codicil to the will of Elizabeth Allen contained this clause:

“I give and bequeath to my step-son, Omar H. Allen, the use or rents accruing from my house, and one acre of land that the said house stands upon, after his father’s decease, provided his father does not sell said property, which privilege I grant him, provided it is necessary for his maintenance. After the said Omar H. Allen’s decease, the said house and land is to go to his nearest heirs.”

The court held that Omar H. Allen took the fee, subject to the estate and power reserved in Nathan Allen, the father of Omar H. Allen. In the course of its opinion the court said:

“A devise of the income for the use of the devisee, or of the rents and profits of land, ‘is equivalent to a devise of the land itself, and will carry the legal as well as beneficial interest therein.’ ”

In Carpenter v. Van Olinder, 127 Ill 42, 19 NE 868, at p 52, it is said that:

“A devise of the use of the land is equivalent to a devise of the land itself, and carries the legal as well as the beneficial interest therein.”

In the instant case the gifts of the several buildings carried with each gift the use of the land upon which the building stood, and was equivalent to a devise of the land itself.

By the Eighth, Ninth, Tenth and Eleventh Paragraphs of her will the testator devised the building and premises at 725, 727, 729 and 731 East Washington Street to a named nephew, and in each of these paragraphs she disposed of buildings at other designated locations. By her first codicil she referred to the devises of the East Washington Street premises, stating that to the north of said premises there was a driveway and alley, and by this codicil she created a perpetual easement over this driveway and alley for the sole benefit and use of her several donees, and the future owners of the buildings and premises so devised.

By the second codicil she disposed of after-acquired real estate located at 117 North Sixth Street, and rescinded a trust provision as set forth in the Nineteenth Paragraph of her will, and gave, devised and bequeathed to a named niece and nephew all the rest, residue and remainder of her estate, to be theirs equally, share and share alike. In this codicil the testator referred to the Ninth Clause of her will, and stated that by this clause she had given her nephew, Handel Friedman, the building and premises known as 731 East Washington Street. The Ninth Clause of her will did not devise the building and premises known as 731 East Washington Street to Handel Friedman, but devised the premises and building at 727 East Washington Street to Bernard Friedman. It was by the Eighth Clause of her will that she devised the building and premises at 731 East Washington Street to Handel Friedman. A mistake was also made in her reference to the disposition she had made in designated clauses of the original will to the other premises, at 725, 727 and 729 East Washington Street. These mistakes, however, are not material. Following her reference to the fact that she had, by her will, given the building and premises known and described as 725, 727, 729 and 731 East Washington Street to her several named nephews, this codicil continues:

“Now, I do give, devise and bequeath in lieu thereof, merely the said building known and described as 731 East Washington Street, and the buildings known and described as 109, 111, 113 and 115 North Eighth Street, Springfield, Illinois to be his absolutely and forever.”

The same language was employed with reference to the building and premises known and described as 725, 727 and 729 East Washington Street. The premises designated as 725, 727, 729 and 731 East Washington Street each have a 20 foot frontage on East Washington Street and extend north 157 feet. The building on each of these locations is 20 feet in width, fronting on East Washington Street, and extending north 60 feet. If the land was not devised, and the buildings only passed by virtue of the provisions of the second codicil, the donee of the building would only have an easement in the land upon which the buildings stand and would not take the unimproved area to the rear of each of these buildings or any easement therein but this area would pass under the residuary clause.

At 721 and 723 East Washington Street each lot has a 20 foot frontage on East Washington Street and extends north 157 feet and the buildings cover the entire premises. In disposing of these premises the word building was used as it was also employed in the codicil with reference to the disposition of the locations at 725, 727, 729 and 731 East Washington Street. In each instance, the devise of the building was absolute and unlimited and carried with it the land upon which the building stood as an incident to the devise and was equivalent to a devise of the land itself, and the land appurtenant thereto. The exclusive possession of the land was necessary to the enjoyment of the devise.

If, as insisted by counsel for appellant the devise to Handel Friedman of the premises known and described as 731 East Washington Street as changed by the second codicil passed to him merely the building and not the land upon which the building stands, he also owns as a residuary devisee, an undivided one-half of the land upon which this building stands as well as any land appurtenant thereto and used in connection therewith. This is also true of the premises at 109-115 North Eighth Street. It should also not be overlooked that in the first codicil the testator referred to the fact that by her will she had given her four named nephews the premises known and described as 725, 727, 729 and 731 East Washington Street. She then stated that to the north of these buildings and premises there is a driveway and alley and that it was her intention to preserve said driveway and alley for the sole use and benefit of all her nephews, and all future owners of this property and concluded by creating a perpetual easement over said driveway and alley for the sole benefit of the owners of said buildings and property. Inasmuch as there is an area of land lying between the north wall of the buildings erected at 725, 727, 729 and 731 East Washington Street and the north boundary line of these lots, the perpetual easement so created by the first codicil would be of no benefit to testator’s nephews or future owners of the building on these designated lots, if the construction contended for by appellant prevailed.

The cited authorities hold that when a testator devises a house, home or mill, the donee acquires the land upon which the house, home or mill stands, together with any land used in connection therewith. These holdings are persuasive here. The language used by the testator in the will or codicils, in view of the geography of the real estate involved and the results that would obtain, does not call for the severance of the buildings from the land upon which the buildings stand. The repeated use, by the testator, of the words real estate, devise, absolutely and forever, which she employed in connection with her gifts of numerous buildings at designated locations, supports the decree which found that by her will and codicils the testator intended to transfer to the several designated devisees the land upon which the several buildings are located and the land appurtenant thereto and which is used in connection therewith.

The buildings here involved, at the time the will and codicils were drawn, were annexed permanently to the freehold, and in our opinion, the gift of the testator carried with it not only the land on which these buildings stand, but also such additional ground in connection therewith as is necessary for its complete use and enjoyment.

The decree appealed from will be affirmed.

Decree affirmed.

DOVE, J., sitting by assignment of the Supreme Court, CRAVEN, P. J. and SMITH, J., all concur.


author: SMITH, J. TRAPP, J.,

text:
    Bernard Flood, Administrator of the Estate of James Lee Flood, Deceased, Petitioner-Plaintiff-Appellee, v. Country Mutual Insurance Company, a Corporation, Respondent-Defendant-Appellant.
    Gen. No. 10,885.
    Fourth District.
    December 6, 1967.
    Rehearing denied January 2, 1968.

      TRAPP, J., dissenting.
    Craig and Craig, of Mattoon (Whitney D. Hardy, of counsel), for appellant.
    Glenn & Logue, of Mattoon (Thomas J. Logue, of counsel), for appellee.
   SMITH, J.

This is an appeal by the defendant insurance company from an order of the circuit court refusing to stay an arbitration proceedings then pending under an arbitration agreement contained in a policy issued by the defendant to the plaintiff and ordering that the arbitration proceedings proceed.

The insurance policy in question provided that the insurer would pay to the insured or his legal representatives such damages as owed from the owner or operator of an uninsured vehicle because of bodily injury arising out of the ownership, maintenance or use of such uninsured vehicle. It further provided that “for the purposes of this coverage, determination as to whether the Insured or such representative is legally entitled to recover such damages, and if so the amount thereof shall be made by agreement between the Insured or such representative and the Company or, if they fail to agree and the Insured or the Company so demands, by arbitration.” It further provided that if any person making claim hereunder and the company do not agree that such person is legally entitled to recover damages from the owner of such a vehicle or do not agree as to the amount of payment which may be owing under this section, then “upon written demand of such person or upon written demand of the Company, the matter or matters upon which such persons and the Company do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association.” The plaintiff-insured demanded arbitration. The defendant refused to submit the matter to arbitration and insists that whether or not there is coverage under the policy is a question for the court and not for arbitration. Otherwise stated, the defendant-company’s position is that the arbitrator is without jurisdiction or authority to determine whether or not there is coverage under the policy. Indeed the motion of the defendant to stay the arbitration proceedings asked the court to stay that proceedings until such time as the plaintiff should institute a declaratory judgment suit to determine whether or not there was any such coverage and to order that the institution of such proceedings by the plaintiff be a condition precedent to the termination of any issue by way of arbitration. This position is grounded upon the very simple proposition that if there is no coverage, there is nothing to arbitrate.

Other jurisdictions have held that the determination as to whether or not the claimant is an insured, or whether the other vehicle was actually uninsured or whether there was a hit-and-run driver involved are coverage questions not encompassed by an arbitration clause in an insurance policy. Vanguard Ins. Co. v. Polchlopek, 18 NY2d 376, 275 NYS2d 515, 222 NE2d 383; Western Casualty & Surety Co. v. Strange, 3 Mich App 733, 143 NW2d 572; Hartford Accident & Indemnity Co. v. Travelers Ins. Co., 25 Conn Supp 414, 206 A2d 847; Damsel v. State Farm Mut. Automobile Ins. Co. (Fla App), 186 So2d 825. The New York Court of Appeals by a 4-3 decision held likewise in Rosenbaum v. American Surety Co. of New York, 11 NY2d 310, 229 NYS2d 375, 183 NE2d 667, and it would appear that the language considered in that case is substantially word for word with the arbitration provisions of the policy we now examine. While these cases are persuasive, they are not controlling. The policy in question provides that if the claimant and the company do not agree that the claimant is legally entitled to recover damages or they do not agree as to the amount of payment which may be owing, then “the matter or matters upon which such person and the Company do not agree shall be settled by arbitration

So far as the interpretation or construction of arbitration agreements are concerned, they are subject to basically the same rules which apply to all other contracts. The statutory law is deemed a part of the contract, the same as though expressly incorporated therein. Schiro v. W. E. Gould & Co., 18 Ill2d 538, 165 NE2d 286. Our statute, chapter 10, Ill Rev Stats 1965, provides in 102 § 2 (a) that if the opposing party denies the existence of an agreement to arbitrate, the court should proceed summarily to a determination of that issue so raised and shall order arbitration if it finds for the moving party, otherwise, the application for arbitration shall be denied. Paragraph (b) likewise provides that the court may stay an arbitration proceeding commenced or threatened on a showing that there is no agreement to arbitrate and states “That issue, when in substantial and bona fide dispute, shall be forthwith and summarily tried and the stay ordered if found for the moving party. If found for the opposing party, the court shall order the parties to proceed to arbitration.” Paragraph (e) of the same statute provides “An order for arbitration shall not be refused on the ground that the claim in issue lacks merit or bona fides or because any fault or grounds for the claim sought to be arbitrated have not been shown.” It seems clear to us, therefore, that the intervention of the court is limited to the single issue as to whether or not there is an arbitration agreement. We have already observed that the policy provisions stated that upon written demand “the matter or matters upon which such person and the Company do not agree shall be settled by arbitration.” The policy does not read “such matter or matters” and thus limits the matters to be submitted to arbitration to matters contained in the preceding paragraph. That the policy could have limited the issues to the liability of the hit-and-run driver to the claimant is conceded. It didn’t. We agree with the minority in Rosenbaum that the language is unequivocal. It is for the arbitrator to determine from the facts whether or not there is coverage under this policy.

The view just stated is supported by School Dist. No. 46 v. Del Bianco, 68 Ill App2d 145, 215 NE2d 25. In that case, the Appellate Court said, “The foregoing provisions of the Act militate against the contention that a party to an arbitration agreement may choose between the judicial or arbitration forum. The sole issue under the Act on the preliminary hearings to compel or stay arbitration, is whether there is an agreement to arbitrate. If so, the court should order arbitration; if not, arbitration should be refused. Upon this simple formula, the preliminary hearings on such issue should be determined.” The same court states at page 154, “However, if the dispute is over the scope of the issues intended to be submitted to arbitration and they are not clearly defined in the arbitration clause or agreement, as in the case at bar, then a construction by the court of the clause or contract in the light of section 2 would end in destroying the agreement of the parties that a specific term or the terms and meaning of the arbitration clause should be determined by the arbitrators.” The court likewise said at page 155, “Where there is an agreement to arbitrate and its scope is reasonably in doubt, the issue of arbitrability should be initially determined by the arbitrators, subject to the protective reservations of section 12 of the Act — under which the court may vacate an award under the varying conditions therein specified.” If, therefore, arbitration fails to dispose of the entire controversy, the parties may then litigate the issue of the scope of arbitrability under section 12 of the Act which provides, among other things, that the court shall vacate an award where “(3) The arbitrators exceeded their powers; .. . .”

The entire contract covering protection against bodily injury by an uninsured vehicle is contained in section II of the policy. The paragraph of this section entitled “Coverage” provides “determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof” shall be by agreement or in default thereof by arbitration. The two items refer specifically to damages by an uninsured motorist and are clearly arbitrable. This same section II defines “Insured,” “Vehicle,” “Uninsured Vehicle,” and “Hit-and-Run Vehicle.” A paragraph entitled “Arbitration” is significantly different from the language in the “Coverage” paragraph. It provides that if the parties “do not agree as to the amount of payment which may be owing under this Section” (emphasis supplied) then arbitration may be had. Does this mean owing by the uninsured motorist or does it mean owing by the defendant-company under the terms of section II? If it means the latter — which we think it does — then the issue of whether or not the claimant is an insured, whether the other vehicle was actually uninsured, or whether there was a hit-and-run driver involved are questions which must be resolved in favor of the plaintiff before there is any obligation on the company to make any “payment which may be owing under this Section,” and the amount, if any, “owing under this Section” is subject to arbitration. To interpret the words last quoted to mean “the amount of payment which may be owing [by the uninsured motorist or the hit-and-run driver] under this Section” is to add words which are simply not there. These are already arbitrable under the coverage paragraph. It seems transparently clear to us that the arbitration paragraph deals not with the liability of the uninsured motorist, but deals with the liability of the company to pay under the contract, and that the “coverage” issues presented on this record are properly subject to arbitration in determining whether or not there is anything owing by the company under section II.

The basic intention of our Arbitration Act is to discourage litigation and foster the voluntary resolution of disputes in a forum created, controlled and administered by the agreement to arbitrate and by the statute. This benign policy, in our judgment, is best promoted and aided by a construction that a court is in the first instance limited to a determination as to whether or not an arbitration agreement exists, and that questions of the scope of coverage should in the first instance be determined by the arbitrator in the arbitration proceedings, where that scope is not unequivocally limited and confined by the contract. It could have been, but it wasn’t unequivocally so limited and confined in this contract.

We, therefore, conclude that the judgment of the trial court in the instant case is correct and that it should be and it is hereby affirmed.

Affirmed.

CRAVEN, P. J., concurs.

TRAPP, J., dissents:

TRAPP, J.,

dissenting:

In the adopted opinion the contract is construed to require that defendant arbitrate the issue as to whether the person for whom claim is made was an insured person under the definition contained therein.

There appear to be inherent contradictions in the opinion which states both, (1) that the single issue before the trial court is whether or not there is an arbitration agreement, and, (2) that while the contract could have limited the issues to the liability of the hit-and-run driver, it failed so to do.

Both of the two paragraphs in the contract in which there is reference to arbitration clearly define and limit the issues to be arbitrated in the following language:

(a) A paragraph which the opinion quotes as providing “coverage” in which defendant agrees:

“To pay all sums which the Insured or his legal representatives shall be legally entitled to recover as damages from the owner or operator of an Uninsured Vehicle because of bodily injury, including death resulting therefrom, hereinafter called ‘bodily injury,’ sustained by the Insured, caused by accident and arising out of the ownership, maintenance or use of such Uninsured Vehicle; provided, for the purposes of this coverage, determination as to whether the Insured or such representative is legally entitled to recover such damages, and if so the amount thereof shall be made by agreement between the Insured or such representative and the Company or, if they fail to agree and the Insured or the Company so demands, by arbitration.” (Emphasis supplied.)

In this clause, the adjective “such” is employed to modify “damages,” thus achieving the specificity required by the opinion as to other “matters.”

(b) A paragraph providing “Arbitration” is in the following language:

“If any person making claim hereunder and the Company do not agree that such person is legally entitled to recover damages from the owner or operator of an Uninsured Vehicle because of bodily injury to the Insured, or do not agree as to< the amount of payment which may be owing under this Section, then, upon written demand of such person or upon written demand of the Company, the matter or matters upon which such person and the Company do not agree shall be settled by arbitration . . . .” (Emphasis supplied.)

Grammatically, in the phrase, “the matter or matters,” the word “the” is used as a function word to indicate that the following noun refers to something previously mentioned or clearly understood from the context. It likewise achieves a high quantum of specificity.

As stated in the opinion, Section II does define “Insured,” “Vehicle,” “Uninsured Vehicle” and similar terms. These matters are in separate paragraphs and no reference to arbitration is made concerning any of them.

It is apparent that the language of the policy in the paragraph stating when payment is to be made to the insured, and in the paragraph specifically and solely prescribing arbitration, limits the arbitration procedure to the determination of specific factual issues, i. e., (1) whether claimant is “legally entitled to recover damages from the owner or operator of an Uninsured Vehicle . . . ,” and, (2) if he is so entitled, the amount to be recovered.

In the statutory provision, chapter 73, § 755 (a) (Ill Rev Stats 1965), relating to “uninsured” or “hit-and-run motor vehicle coverage,” there is no language referring to arbitration of disputes in this form of insurance.

The Uniform Arbitration Act, section 1. (C 10, § 101 Ill Rev Stats 1965) authorizes an agreement to submit any existing controversy to arbitration, and further provides that there may be:

“. . . a provision in a written contract to submit to arbitration any controversy thereafter arising

The term “any” is, of course, distinguishable from the term “all,” as the former means one or more chosen from an undetermined number.

The use of arbitration, therefore, is a matter of contract between the parties and it seems axiomatic that parties may contractually designate specific matters without assuming an obligation to arbitrate all matters of a dispute.

The Uniform Arbitration Act, § 2(a) provides that if a party claims an agreement to arbitrate, but the other party denies the existence of an agreement, the court shall determine summarily the issues so raised, and, in § 2(b), on a party’s application, the court may stay arbitration proceedings commenced or threatened upon a showing that there is no agreement to arbitrate. If such issue is properly in dispute, the court shall summarily dispose of it.

Defendant’s motion in the trial court for the stay of arbitration proceedings presents an issue not specified as a matter for arbitration, and it is precisely an issue for summary disposition by the trial court under § 2(b) of the Uniform Arbitration Act.

The conclusion set out in the opinion that provision for “any” arbitration requires arbitration of “all” controversies under the contract predictably will reduce the use of arbitration procedures, through contract or agreement, to those instances where arbitrable issues can be strictly “all or none.” This determination, in fact, makes § 2 (a) and § 2 (b) of the Uniform Arbitration Act without meaning or application, except in the unlikely event that a party demands arbitration as to a contract which contains no reference whatsoever to arbitration. The opinion has noted authorities consistent with the view expressed in this dissent.


author: HOFFMAN, J. ALLOY, J., STOUDER, P. J.

text:
    Ronald E. Flynn, Administrator of the Estate of Rhonda K. Flynn, Deceased, Ronald E. Flynn, Individually, and Joyce Flynn, Individually, Plaintiffs-Appellants, v. Patrick Vancil, Defendant-Appellee.
    Gen. No. 66-47.
    Third District.
    December 6,1967.

      James A. Wurbs, of Rock Island, for appellants.
    Edward Keefe, of Rock Island, for appellee.
   HOFFMAN, J.

This appeal from the Circuit Court of Rock Island County, originated as an action by Ronald E. Flynn, as Administrator for the Estate of Rhonda Kay Flynn, by Ronald E. Flynn, individually, for medical and funeral expenses, by Ronald E. Flynn, individually for his injuries and by Joyce Flynn, individually for her injuries against Defendant-Appellee, Patrick Vancil. The complaint alleged, under separate counts, a cause of action under the Wrongful Death Act (Ill Rev Stats, c 70, § 1) for the death of Rhonda Kay Flynn, a fourteen-day-old infant, and actions of negligence for injuries to Ronald E. and Joyce Flynn individually and Ronald E. Flynn for the funeral and medical expenses of Rhonda Kay Flynn, Ronald and Joyce being the parents of Rhonda Kay. The jury found in favor of all Plaintiffs, against Defendant, and separately assessed the damages for each Plaintiff, awarding zero damages with respect to the wrongful death count. The trial court entered judgment on this verdict and from that portion of the judgment finding the issues for the Administrator but finding no damages, Plaintiff appeals.

The sole issue on appeal in this cause, certified by the trial judge and approved by opposing counsel, is “Can a jury verdict of liability for the death of a two-week-old female awarding no damages for the administrator for the benefit of the surviving mother and father be sustained where there is evidence of incurable congenital physical defect impairing the health of the child ?”

The propriety of the jury verdict and judgment of the trial court depends upon the application of the rule that there is a presumption of substantial pecuniary damages where the survivor, entitled to bring a wrongful death action, stands in a lineal relationship to the decedent. The Wrongful Death Act provides for recovery of pecuniary loss only. In Wilcox v. Bierd, 330 Ill 571, 162 NE 170, pecuniary loss is held to mean what the life of the decedent was worth, in a pecuniary sense, to the survivors, and it was said that such loss is to be determined from the proof of the personal characteristics of the deceased, his prospects in life, his mental and physical capacities, etc. In City of Chicago v. Scholten, 75 Ill 468, it was held that in the case of a deceased infant, characteristics such as age, sex, health, mental and physical capacities, habits, education and experience, all of which tend to relate to the child’s future circumstances, may be considered in the enhancement of damages.

Because these relevant characteristics are not yet identifiable in the case of an infant, the courts have, in such a case, allowed recovery without proof. Otherwise, great injustice would be done. But there is no authority which we have found which suggests that allowing a plaintiff to recover without proof requires denying to a defendant probative evidence which might mitigate or tend to reduce the presumed loss. To prohibit so-called “rebutting or mitigating evidence” would deny to the defendant the right to have the loss based upon the actual personal characteristics of the deceased infant.

So, we hold that the negative can be shown and the defendant may introduce evidence which will lessen, or tend to lessen, the loss otherwise presumed.

But, in the instant case, no such mitigating evidence was introduced. The problem in this Court arises solely upon the facts contained in the certified question. These facts are that the decedent was a female child, two weeks of age, suffering an incurable congenital physical defect which impaired her health. It is obvious that such facts, standing alone, are not sufficient to negative every individual characteristic, if, indeed, that is possible, which may have been possessed or later developed by the infant. Accordingly, we believe that the presumption of substantial pecuniary damages is not overcome by the certified question, and the jury’s finding of zero damages cannot stand.

The judgment of the Circuit Court of Rock Island County is reversed and remanded for a new trial.

Judgment reversed and cause remanded.

ALLOY, J.,

concurring specially.

I concur in the conclusion that the judgment should be reversed and the cause remanded. I cannot, however, concur with the language therein which implies that the presumption of substantial pecuniary damages could be overcome by evidence which might be introduced on behalf of defendant. We are all in agreement that a presumption of substantial pecuniary loss to the lineal next of kin arises by reason of the relationship alone. In my judgment this presumption may not be destroyed. It is the fact of relationship alone from which the presumption arises (Dodson v. Richter, 34 Ill App2d 22, 180 NE2d 505). I feel that the rule in Illinois is, and should be (when lineal next of kin survives), that the presumption of substantial damages for pecuniary loss when a young child is killed is a viable concept and should be given effect by the courts (Ferraro v. Augustine, 45 Ill App2d 295, 299, 196 NE2d 16). While evidence may operate to reduce the amount of such damage, nevertheless there must remain the right to recover substantial damages in a case such as is before us.

Without minimizing the cases which emphasize the presumption of substantial pecuniary loss by reason of the relationship alone, irrespective of the age of the decedent, certainly, in the case of the death of a minor child, this presumption should be a durable one. No one can say that a young child, however ill or handicapped at the moment, would be of no pecuniary value to the next of kin. Developing medical science and the adaptation of individuals of very limited and even nonexistent physical abilities have demonstrated that we cannot, at any point of time, say that a certain individual will have no pecuniary value to his next of kin at any time in the future. To cite a practical example in our present experience, consider the case of the famous Helen Keller who was born both blind and deaf. A pragmatic approach to a problem of that sort would have been that Helen Keller could be nothing but an economic burden the rest of her life. Even communicating with her would seem hopeless. How wrong this would have been has been demonstrated by this remarkable lady’s career.

To permit a jury to speculate and conclude on the basis of any evidence presented at a time when the child is very young, that such child would be of no pecuniary value to his parent, is an improper application of the rules relating to the presumption under consideration. This presumption of substantial pecuniary loss arises from the common experience of men, and, to the extent that the courts have presumed such substantial loss to next of kin, it constitutes a durable presumption which cannot be wholly destroyed. It would be impossible to prove affirmatively at this stage that any pecuniary loss would be sustained by the parents. Similarly, it is also impossible to prove that no pecuniary loss would be sustained. The sole effect of evidence which could be offered on behalf of defendant would be to reduce the amount of damages. Such damages, however, cannot be reduced below what the jury as approved by the court would determine to be substantial damages.

I believe that these considerations should be guiding principles on a retrial of this cause.

Special Concurring Opinion.

STOUDER, P. J.

I concur in the conclusion that a new trial should be held on all issues. This case presents some diversity of opinion among the members of the court on the applicable principles.

At the outset, I must hold that the verdict complained of is erroneous because it is inherently contradictory. The Wrongful Death Act provides an action for the death of a person in any case where the death was caused by the wrongful act, neglect or default of another and where the decedent would have been able to maintain an action for negligence but for his death. In other words the action contemplated is an action for negligence. “The essential elements of a cause of action for negligence are (1) The existence of a duty on the part of the person charged to protect the complaining party from the injury received; (2) a failure to perform that duty; and (3) an injury resulting from such failure. . . . the absence of any one of these would render the pleading bad.” Devaney v. Otis Elevator Co., 251 Ill 28, 95 NE 990 (see to the same effect McClure v. Hoopeston Gas & Electric Co., 303 Ill 89, 135 NE 43, and Drury v. East St. Louis Light & Power Co., 194 Ill App 121). What the jury has done in the instant case is to say in effect “We find the Defendant guilty of negligence but we find that one of the essential elements of negligence is not present.” This is a verdict without meaning and cannot be allowed to stand.

The certified question of law ignores the basic error in the verdict but relies on the peculiar error in the verdict as the basis for submitting the question. The question could not have arisen in the form in which it was submitted to us in the absence of such peculiar error. A consideration of the question is therefore only material as it relates to correcting the verdict. The verdict can not be remedied by granting the judgment to either the Plaintiff or Defendant which leaves the alternatives of a new trial on the issue of damages only or a new trial generally. If substantial damages are presumed from the relationship as a matter of law it would follow that a new trial should be limited to the issue of damages only. If on the other hand the presumption is rebuttable to the extent that there could be no damages, it would follow that a new trial generally is required, a new trial on the issues of damages only might only perpetuate the error.

The issue presented by the certified question of law is not whether the evidence or the conclusion relating to the evidence supports the verdict of no damages but whether such finding of no damages can be supported by any state of facts, i. e. degree of impaired health. The conclusiveness of the presumption is therefore directly involved.

Our courts have repeatedly held that substantial damages will be presumed from the existence of a lineal relationship in a Wrongful Death Act. City of Chicago v. Scholten, 75 Ill 468; Jackson v. Fisher, 341 Ill App 311, 93 NE2d 438. The holdings, in the case of a minor child, are predicated upon the right of the parents to the future services of the child and the impracticality of proving the future value of those services. (See ILP, Yol 16, p 34 and cases cited therein.) Our courts have also held that while the law will presume substantial damages there must be some evidence upon which the jury may base a finding of substantial damages, Jackson v. Fisher, 341 Ill App 311, 93 NE2d 438; City of Chicago v. Scholten, supra, and that testimony that the minor was a bright, healthy and intelligent child is sufficient. Jackson v. Fisher, supra.

In determining the effect of this presumption I believe that a line of cases must be considered which in strong language holds that no presumption of fact may stand in the face of evidence to the contrary. Sharp v. Sharp, 333 Ill 267, 164 NE 685; Lohr v. Barkmann Cartage Co., 335 Ill 335, 167 NE 35; Osborne v. Osborne, 325 Ill 229, 156 NE 306; Miller v. Pettingill, 392 Ill 117, 63 NE2d 735. How then is it possible to distinguish between what the courts have held to be conclusive presumptions of fact and those which are rebuttable ? It seems to me that the distinction may be made by stating that there are certain presumptions against which the court can conceive of no convincing evidence to the contrary. These are the so-called “conclusive presumptions” and include, among others that a child under seven years is incapable of forming a criminal intent or that a female under a certain age is incapable of consenting to sexual intercourse. Is the presumption of substantial pecuniary loss in this category? I think not. Removing from consideration the mental anguish and bereavement of the parents which our Supreme Court has held are not proper elements of damage (City of Chicago v. Major, 18 Ill 349), I think it is quite possible to conceive of circumstances under which this presumption could be rebutted. It is not the value of a human life which is involved in this proceeding such question having eluded the efforts of philosophers and legal scholars, notwithstanding the considerable thought applied thereto. Instead pecuniary loss to the survivors is the issue and such question depends on present reasonable probabilities, not upon speculation concerning doubtful possibilities.

To hold that a presumption may be both conclusive and rebuttable is I believe a patent contradiction. The language of the presumption itself is that of degree or relativity. The effect of the presumption depends upon the variables of human experience and evidence not described by its terms. From the nature of the presumption it does not appear to me that the degree to which the presumption can be rebutted is or can be limited.

Furthermore if the presumption be deemed conclusive IPI Instruction No. 31.01.03 would be inapplicable and the survivor would be entitled to an instruction relating to the conclusive effect of the presumption. This result appears to me to be both unjustified and unnecessary.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Harry Stroud, Defendant-Appellant.
    Gen. No. 67-1. (Abstract of Decision.)
    Third District.
    December 6, 1967.
    Nelson & Weinstine, of Morrison, for appellant; L. E. Ellison, State’s Attorney, of Morrison, for appellee.
   Opinion by JUSTICE ALLOY. Not to be published in full.


author: HOFFMAN, J.

text:
    Patsy Wille, Plaintiff-Appellee, v. Farmers Equitable Insurance Company, Defendant-Appellee, and Main Mutual Insurance Company of Illinois, Defendant-Appellant.
    Gen. No. 67-53.
    Third District.
    December 6, 1967.

      Sidney S. Deutsch, of Rock Island, for appellant.
    Eagle & Eagle, of Rock Island, and Bozeman, Neighbour, Patton & Henss, of Moline, for appellee.
   HOFFMAN, J.

The plaintiff in this case, in a separate action, obtained a judgment against one Carl Fisher, defendant in the separate action and not a party to this cause, for injuries which she incurred when her automobile was struck by one driven by Fisher. Plaintiff’s automobile was insured by defendant, Farmers Equitable Insurance Company, under a policy which carried an uninsured motorist provision in plaintiff’s favor. It was claimed that Fisher was insured by defendant Main Mutual Insurance Company. Because defendant Main refused to acknowledge any coverage, the plaintiff instituted this cause, a declaratory judgment proceeding, to determine whether Main was liable for her judgment against Fisher, or whether plaintiff should take action against her company (Farmers Equitable) under the uninsured motorist clause.

The issue and sole question presented is whether or not, at the time of the accident, Fisher was insured by Main. The trial judge, without a jury, rendered a declaratory judgment finding that Fisher was insured by Main. From that judgment Main appeals.

The facts, which are not in serious dispute, are these: On April 7, 1964, defendant Main entered into a written agency agreement with the Rite Insurance Agency of Rock Island, Illinois. By this agreement the Rite Agency, among other things, was authorized on behalf of Main to solicit applications, collect premiums and deliver policies. In addition to Main, the Rite Agency represented other insurance companies. On June 27, 1964, in the Rite Agency, Fisher applied for liability insurance on his car which was later involved in the accident, paid $10 on the premium, and signed an application for such insurance with the State Security Insurance Company. This company is not a party to the suit, but was one of those represented by Rite. On July 3,1964, at the Rite Agency, Fisher paid an additional $5 on his premium. On July 8th, State Security denied the application and on July 9th Rite sent Fisher a memorandum to that effect. Following receipt of this memorandum, Fisher called the Rite Agency and was told that he was covered and that the agency was getting him insurance through another company.

On July 13, 1964, the Rite Agency made application for insurance for Fisher to defendant, Main Mutual, requesting coverage commencing on that date. Fisher did not sign this application. No action was taken on this application by defendant Main, and no follow-up request for action was taken by Rite until August 27, 1964. In the meantime, Fisher’s accident with plaintiff occurred on August 2nd and on August 8th Fisher so notified the Rite Agency. In response to the follow-up request of Rite, Main replied on August 28, 1964, that they had no record of having received the application dated July 13th.

The agreement between Main and the Rite Agency provided that Rite had authority “to solicit, receive and accept applications for . . . insurance ... ; to issue, deliver, renew and countersign policies, bonds, certificates, endorsements and binders which the company may, from time to time, authorize ... ; to collect and receipt for premiums thereon and therefor; and to perform such other duties as are usually required of agents.” In addition, the company’s application form very legibly stated that “this application does not constitute a policy of insurance until accepted by the company.” It is clear from the aforesaid agreement and application form that the Rite Agency had no authority to bind Main generally or to issue policies without Main’s prior authorization. Based upon these two provisions, it is argued by Main that Rite was a mere soliciting agent without power to bind Main and that Main’s failure to accept the application for insurance prevents its being liable in this case.

The trial judge, in a considered opinion, concluded that even though the Rite Agency merely had authority to take applications, its failure to forward the application, or Main’s failure to act promptly on the application, was chargeable to Main. The trial court pointed out that nearly three weeks elapsed between the time of the application and the date of the accident; that during said period of time, Fisher drove his car in reliance on the agent’s assurance that he was covered, that Fisher had a collision which subjected him to a $5,000 judgment, and that under these circumstances Main should be estopped from denying its liability.

There is a considerable body of authority from many jurisdictions to support the trial court’s conclusions.

The first question to be considered is whether or not the failure of Rite to submit Fisher’s application to Main, or Main’s failure to act upon it promptly, if it was submitted to them, creates liability on the part of Main. Our Supreme Court in the recent case of Zak v. FidelityPhenix Ins. Co., 34 Ill2d 438, 216 NE2d 113, held that where an insured is prejudiced by an unreasonable delay in disclaiming coverage, the insurer is estopped to assert noncoverage and becomes liable.

In Snyder v. Redding Motors, 131 Cal App2d 416, 280 P2d 811, an insurer was held liable where the application wasn’t acted upon within a reasonable time and the applicant became involved in a collision. The court said: “It is a matter of common knowledge that respondents proceeded to apply for the insurance policy in the same manner as is done by the great majority of automobile purchasers. And it is likewise a matter of common knowledge that such policies issue as a matter of course unless there is some fraud or misrepresentation on the part of the applicant.” In Voss v. American Mut. Liability Ins. Co. (Mo App), 341 SW 270, a case in which an applicant was assured upon making a down payment that he was covered, the court stated: “There is ample authority for the rule that an unreasonable, unwarranted and unexplained delay on the part of an insurance company in acting on an application, and in retaining the premium, may subject it to liability to an applicant who has been thereby misled, to his injury.” Numerous other authorities have concurred. In 7 Am Jur2d, at page 296, the editors state: “Where the insurer retains the premium paid on an application and permits an unreasonable delay to occur before rejecting the application and returning the premium, it may be liable to an applicant who has been misled thereby to his injury.” In Appleman, Insurance Law and Practice, Vol 12, § 7226, the author states: “The more liberal, and probably the better rule, is to the effect that an insurance company obtaining an application for insurance is under a duty to accept or reject it within a reasonable time. By failure to act upon an application duly made, the period of delay may be so unreasonable as to estop the insurer from denying liability.”

What constitutes a reasonable time for action by the insurance company upon an application presented to its agent ordinarily presents a question of fact. Milbank Mut. Ins. Co. v. Schmidt, 304 F2d 640; Voss v. American Mut. Liability Ins. Co., supra. It is our conclusion that in this case such a fact question was presented. From the evidence as we review it, we are of the opinion that the trial court’s conclusion that an unusual delay occurred between the application date for the insurance and the date of the company’s reaction to it was correct.

Main argues, however, that it never received Fisher’s application from the Rite Agency and that Rite did not have the authority to bind Main in this regard. There is considerable argument in the briefs as to whether or not Rite was Main’s agent. Whether or not Rite was a general agent of Main with power to bind Main generally is not important. The question is whether or not Rite had the authority to act for Main in the solicitation of insurance. If it did, it then was Main’s agent in that respect and Main was responsible for Rite’s activities in that regard.

Appleman, in his previously cited work, states at sections 8697 & 7226:

“The almost unanimous weight of authority is now . . . that a soliciting agent of an insurance company is the agent of the insurer and not of the insured for the purpose of soliciting and procuring the insurance and preparing the application.
“Since an agent soliciting insurance can frequently bind an insurer as to matters pertaining to the taking and preparation of applications for insurance, an insurance company is chargeable with such agent’s delay in retaining an application for an unreasonable length of time and in failing to forward it to such company for action.”

There is no question but what Rite had the authority to solicit insurance on behalf of Main. That was spelled out with particularity in the agreement. Furthermore, at the trial Main’s underwriter testified that Rite was selling Main’s insurance, placing business with them, collecting their premiums and issuing and delivering their policies.

Such being the case, Main was responsible for Rite’s conduct in soliciting Fisher’s insurance. To this extent, at least, Rite was Main’s agent and the failure of Rite to properly handle the application of insurance becomes the failure of Main.

The judgment appealed from is affirmed.

Affirmed.

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