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Standard Mut. Ins. Co. v. Kinsolving

MAY 18, 1960.

STANDARD MUTUAL INSURANCE COMPANY, A CORPORATION, PLAINTIFF-APPELLEE,

v.

CHARLES KINSOLVING, JR., ET AL., DEFENDANTS. RUTH ANN KOZAK, NOW RUTH ANN ROSS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Sangamon county; the Hon. DEWITT S. CROW, Judge, presiding. Affirmed.

CARROLL, JUSTICE.

The defendant, Ruth Ann Kozak, now Ruth Ann Ross, has appealed from a declaratory judgment of the Circuit Court of Sangamon County exempting plaintiff from any obligation to defend or pay any judgment against the holder of a policy of automobile liability insurance in an action for personal injuries. Plaintiff has cross-appealed from that portion of said declaratory judgment holding defendant Kozak to be entitled to the benefits of the medical coverage provided by said policy.

The record discloses that on February 21, 1956, the defendant Charles Kinsolving, Jr., a resident of LaSalle County, Illinois, applied to the Hale Jackson Insurance Agency in LaSalle County for a liability insurance policy to cover his automobile. The application was forwarded to the home office of plaintiff insurance company in Sangamon County, Illinois, where it was received February 24, 1956. After subjecting the application to its underwriting process, the plaintiff decided to accept the risk. Thereupon it prepared the policy which was then executed by its president and secretary under date of February 24, 1956, and mailed to the Hale Jackson Agency in LaSalle County. Upon receipt of the policy in LaSalle County, the agent counter-signed the same and delivered it to Kinsolving. On July 9, 1956, the automobile covered by the policy which was then being driven by Mary Lou Carter, was involved in an accident in LaSalle County. The defendants Kinsolving and Kozak were passengers in the automobile at the time of the accident. As a result of said accident Kozak and Carter sustained injuries. On July 10, 1956, plaintiff was advised of the accident by telephone and assigned the handling of the case to Attorney Edward Connelly of Streator for investigation. On July 12, the plaintiff received a copy of the LaSalle County Sheriff's accident report which listed Kinsolving as the driver of the automobile. On July 15 plaintiff received a written statement given to its investigator by Kinsolving on July 11 in which Kinsolving said he was the driver of the automobile at the time of the accident. On July 18 plaintiff received the regular accident report signed by Kinsolving stating that he was the driver at the time of the accident. On July 23, 1956, the company received a statement taken from Ruth Ann Kozak on July 10 and in which she stated Kinsolving was the driver of the automobile. On August 25, 1957, Ruth Ann Kozak filed her verified complaint against Kinsolving in the Circuit Court of LaSalle County for the injuries which she sustained in the accident and alleging him to be the driver of the automobile and charging him with various acts of wilful and wanton misconduct in its operation. On Sept. 24, 1957, the plaintiff received a supplementary statement taken from Kinsolving Sept. 20, 1957, in which he again claimed to be the driver of the automobile. On the morning of March 13, 1958, Kinsolving met with attorneys Maurice Kempner and Connelly at the accident scene. On that occasion he described how the accident occurred and told the attorneys that he was driving the automobile. On the afternoon of the same day, the discovery deposition of Ruth Ann Kozak was taken and she then stated that Mary Lou Carter was driving the Kinsolving automobile at the time of the accident. The deposition of Kinsolving was also taken on that day and he then stated that Mary Lou Carter and not he was driving his automobile when the accident occurred on July 9, 1956. Both Kinsolving and Kozak stated in their depositions that a lady who came upon the scene immediately after the accident suggested to the three car occupants that it would be better if they said Kinsolving was driving; that they agreed to adopt the lady's suggestion and had since then maintained that Kinsolving was the driver.

On March 28, 1958, plaintiff served a reservation of rights notice on Kinsolving.

The instant action for a declaratory judgment was instituted in the Circuit Court of Sangamon County on January 20, 1959. On February 10, 1959, Kozak filed a motion to transfer the cause to the Circuit Court of LaSalle County. The grounds set out in said motion were that she and Kinsolving resided in LaSalle County; that none of the defendants ever lived in Sangamon County; that the insurance policy involved was issued by the agent of plaintiff company in LaSalle County and no dealings concerning the same were conducted in Sangamon County. Affidavits in support of the motion were filed and plaintiff filed a counter-affidavit. The motion to transfer the cause was denied and Kozak filed her answer to the complaint. She also filed an affirmative defense alleging the same facts recited in the affidavits supporting the motions to transfer the cause. Plaintiff then moved for summary judgment and supported its motion by affidavits setting forth in detail the statements made by Kozak and Kinsolving as to the identity of the driver of the automobile at the time of the accident. The defendant Kozak filed a counter-affidavit in which she stated that at the time of the accident she was riding as a guest passenger in the Kinsolving automobile; that at the time of said accident Mary Lou Carter was sitting behind the steering wheel of said automobile; that immediately prior to the accident Kinsolving grabbed the steering wheel and attempted to put his foot on the brake but in fact put it on the accelerator which caused the accident; that Kinsolving was at said time in possession and control of said automobile and was in fact driving the same.

On motion of plaintiff the court struck the affirmative defense set up in the answer and granted the motion for summary judgment.

The questions raised by this appeal are (1) whether the venue was properly laid in Sangamon County and (2) whether plaintiff has been relieved of its obligations under both the liability and medical payment coverage of the policy because of a breach of the conditions of said policy.

The Civil Practice Act provides that every action must be commenced either in the county where any defendant resides or "in the county in which the transaction or some part thereof occurred out of which the cause of action arose." Par. 5, Chap. 110, Ill. Rev. Stats. 1959. Plaintiff's action seeks a determination by the court as to whether either of the defendants have any rights under a contract of insurance between plaintiff and Charles Kinsolving, Jr. Accordingly that which entered into the execution of said contract constituted the transaction out of which this cause of action arises.

Defendant argues that because Kinsolving applied to an agent in LaSalle County for the policy in question and it was delivered to him in that County the contract was actually made in LaSalle County and that which took place in Sangamon County amounted to but preliminary or insignificant details insufficient to be considered a part of the transaction. We cannot agree with such contention. Defendant's application was mailed to plaintiff's home office in Sangamon County where the plaintiff made the decision to accept the same. The policy was prepared and executed in Sangamon County and concludes with the following paragraph:

"In witness whereof, the Company has caused this policy to be signed by its President and Secretary, but this policy shall not be valid unless completed by the attachment hereto of a declaration page designated as Automobile Policy — Part Two and countersigned on the aforesaid declarations page by a duly authorized representatave of the Company."

It thus appears that the affixing of the signatures of the president and secretary of plaintiff company and the attachment of the declaratory page were conditions precedent to the effectiveness of the policy and that such conditions were performed in Sangamon County. The factor decisive of the question as to where the transaction or a part thereof occurred are pointed out in People v. Lange, 8 Ill.2d 437, 134 N.E.2d 266. In that case a resident of Piatt County applied to the State Automobile Department for a truck license. The application was processed in Sangamon County and the license mailed to Piatt County. A suit for the license fee was brought in Sangamon County. In rejecting the contention that the action was commenced in the wrong venue, the court said:

"Here it is alleged without denial that defendant applied for, partially paid for, and received his licenses for the privilege of using the highways at Springfield, in Sangamon County, and that every step taken by the plaintiff in acting upon defendant's application likewise occurred there. All these acts were an integral part of plaintiff's cause of action and which he would have to establish in order to recover the disputed license fees and privilege taxes from defendant. Under such circumstances it appears that a very substantial part of the `transaction' out of which plaintiff's individual cause of action arose took place in Sangamon County. (Cf. Christopher v. West, 345 Ill. App. 515, 104 N.E.2d 309; Schmelzle v. Transportation Investment Corp. 341 Ill. App. 639, 94 N.E.2d 682). We conclude, therefore, that Sangamon County was the proper venue and that the circuit court did not err when it denied the plea which challenged the court's jurisdiction on such grounds."

In Keystone Steel & Wire Co. v. Price Iron & Steel Co., 345 Ill. App. 305, 103 N.E.2d 143, the action was for damages for defendant's failure to furnish scrap as provided by a contract which was prepared and signed by plaintiff in Peoria County and then forwarded to defendant who signed it in Cook County. Peoria was held to be a proper venue and in so deciding the court said:

". . . it makes no difference which party signed (the contract) first, or where it was delivered. It shows that part of the transaction took place in Peoria County, and the other part in Cook County, and it is our conclusion that the Court ...


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