Appeal from the Circuit Court of LaSalle county; the Hon.
WALTER DIXON, Judge, presiding. Affirmed in part; reversed in
part; and remanded with directions.
Rehearing denied June 5, 1961.
This is an appeal from an order denying a motion for summary judgment and allowing a motion to dismiss a complaint for declaratory judgment.
As to the salient facts, the record shows that as of September 17, 1958, the Farmers Automobile Insurance Association had issued an insurance policy to Cletus Janusick insuring him from liability incurred while operating a certain 1953 Oldsmobile or while operating any automobile acquired to replace that vehicle. The record further shows that on the date and while operating a 1952 Oldsmobile, Janusick was involved in a collision. As a result of this collision and on December 2, 1958, damage suits were filed against Janusick by Patricia McLaughlin Drennan, Katherine Drennan, Carol McLaughlin, Terry Ann McLaughlin, a minor, Shawn Beth McLaughlin, a minor, and Carol McLaughlin, administrator of the estate of Carol Anne McLaughlin, deceased. Janusick filed an answer in these suits through his personal attorneys, and the attorneys for the Farmers Automobile Insurance Association entered their appearance under a non-waiver agreement.
On March 19, 1959, The Farmers Automobile Insurance Association filed an action seeking a declaratory judgment that its policy did not cover Janusick's operation of the 1952 Oldsmobile involved in the collision in question. Janusick and the parties who had sued him were named defendants in the action. The insurance carrier made a motion for summary judgment and supported the motion with an affidavit that the 1952 Oldsmobile was not a replacement for the 1953 Oldsmobile described in the policy. Counter affidavits were filed to the effect that Janusick had sold the 1953 Oldsmobile, that he had taken a 1950 Chevrolet in trade, that the 1950 Chevrolet was not usable and was sold as junk, and that Janusick had purchased the 1952 Oldsmobile as a replacement for the 1953 Oldsmobile. Also a motion was filed to dismiss the action for declaratory judgment on the ground that it was premature and could not properly be filed prior to the entry of judgments in the damage suits against Janusick. The circuit court denied the motion for summary judgment and allowed the motion to dismiss the complaint for a declaratory judgment. This appeal followed.
The statute pertaining to summary judgments, ch. 110, sec. 57(3), Ill. Rev. Stat., 1959, provides that a summary judgment may be entered only if the record shows that "there is no genuine issue as to any material fact." The record in the case at bar shows that the question as to whether the 1952 Oldsmobile was or was not a replacement for the 1953 Oldsmobile was directly at issue. Since this constituted a genuine issue as to a material fact, we believe that the circuit court was correct in denying the motion for summary judgment.
A number of recent decisions fully support the action of the circuit court in denying the motion for summary judgment. In Halloran v. Belt Ry. Co. of Chicago, 25 Ill. App.2d 114, 118, 166 N.E.2d 98, the Court used the following language in reversing a summary judgment:
"This procedure may not be used to impair the right of trial by jury. Its purpose is not to try an issue of fact, as it is only when the undisputed facts are susceptible of but a single inference does the issue become one of law. (Inland Steel Co. v. Industrial Commission, 18 Ill.2d 70, 78 (1959). Questions which are composed of factors sufficient to cause reasonable men to arrive at different results should never be determined as matters of law. (Ney v. Yellow Cab Co., 2 Ill.2d 74, 84 (1954.) Defendant's right to judgment must be free from doubt. If the pleadings, discovery depositions and exhibits present a genuine issue as to any material fact, the judgment order ought not to have been entered. Naus v. Joanna-Western Mills Co., 18 Ill. App.2d 85, 92 (1958); Allen v. Meyer, 14 Ill.2d 284, 292 (1958)."
In Simaitis v. Thrash, 25 Ill. App.2d 340, 347, 166 N.E.2d 306, the Court reversed a summary judgment and used the following language:
"Summary judgment procedure may not be used to impair the right of trial by jury. Its purpose is not to try an issue of fact but to try whether one exists between parties within the legal meaning. Sampson Co. v. Mandel Bros., 3 Ill. App.2d 92, 120 N.E.2d 571. The purpose of summary judgment proceedings is to determine whether there is any genuine triable issue of fact which must be passed upon and, if there is, the motion for summary judgment must be denied. Gribben v. Interstate Motor Freight System Co., 18 Ill. App.2d 96, 151 N.E.2d 443."
See also Ehresman v. The Town of Loda, 25 Ill. App.2d 259, 166 N.E.2d 294.
As to the propriety of the circuit court's action in dismissing the complaint for a declaratory judgment, we have read the various decisions cited by the parties, including Valente v. Maida, 24 Ill. App.2d 144, 164 N.E.2d 538, wherein the court held that once the injured third person obtains a judgment against the insured, it is not proper to restrain the third person from taking action on the judgment pending a decision on the question of insurance coverage. However, none of the Illinois decisions which have been cited covers the precise question involved in this case, i.e. whether the insurance company had a right to file its complaint for declaratory judgment during the pendency of the various suits brought by the injured third persons.
There is a wide divergence among the authorities in other jurisdictions on this point and a number of decisions have been called to our attention which lend support to both sides in the instant controversy. However, certain general rules are laid down in the authorities which seem to cover the instant situation.
For example, the following statements appear in the 1960 Supplement to Vol. 16, Am. Jur., Declaratory ...