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Gould v. Country Mut. Cas. Co.

MARCH 27, 1962.

GEORGE H. GOULD, PLAINTIFF-APPELLEE,

v.

COUNTRY MUTUAL CASUALTY COMPANY, AN ILLINOIS CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County; the Hon. CASSIUS POUST, Judge, presiding. Judgment affirmed. This DOVE, P.J.

Country Mutual Casualty Company issued to George H. Gould, a member of the Kane County Farm Bureau, a policy of insurance designated as "Farmers General and Employers Liability Policy." This policy became effective on January 21, 1948 and it was in full force during the entire month of June, 1953. By its provisions the liability of the company for loss on account of an accident resulting in death to one person was limited to $10,000. Its insuring agreements were designated as coverages, A, B, C and D and by these provisions the company became obligated to pay the insured "all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law, on account of accidental bodily injuries, including death at any time resulting therefrom, suffered or alleged to have been suffered by any person or persons not employed by the insured, by reason of the insured's negligence, including liability arising from the ownership, maintenance, or use of any farm implement or any farm tractor not subject to motor vehicle registration."

Following Coverage D of the insuring agreement under the heading, "Defense and Expense," appears the following: "The company agrees with respect to insurance afforded by this policy under coverages A, B, and C, to defend, in the name of and on behalf of the insured, any suits, even if groundless, brought against the insured to recover damages, and to pay, irrespective of the limits of liability, all costs taxed against the insured in any legal proceeding defended by the company, all interest accruing after entry of judgment upon such part thereof as shall not exceed said limits of liability, and all expenses incurred by the company in its investigations, and the adjustment of any claim, or the defense of any suit resulting therefrom." Under the heading "General Exclusions," it was stated that the policy did not cover any "damage, loss, liability or obligation arising out of any criminal, wilful, deliberate or malicious act."

On October 24, 1958 in the Circuit Court of Kane County George H. Gould filed the instant complaint by which he demanded judgment against Country Mutual Casualty Company for $11,500. The defendant answered the complaint and filed its demand for a jury trial and also filed affirmative defenses hereinafter referred to. The plaintiff filed his motion to strike the affirmative defenses and for a summary judgment in his favor. In opposition to this motion for a summary judgment, defendant filed counter affidavits and a motion for summary judgment in its favor. Following a hearing, the trial court entered an order striking defendant's affirmative defenses, denying defendant's motion for judgment, sustaining plaintiff's motion and entered a summary judgment in favor of the plaintiff and against the defendant for $11,500, this amount includes an attorney fee of $2500. To reverse this judgment defendant appeals.

The instant complaint, alleged the issuance of the insurance policy and averred that the plaintiff on the night of June 20, 1953 heard a disturbance in and about his farm; that he was aware that livestock and other personal property had been stolen from him and others in his community; that he fired a shot and the pellets from the gun which he fired, hit and killed William Sandell, sixteen years of age. The complaint then alleged that plaintiff immediately notified the defendant of the facts concerning this accident and requested defendant to furnish legal counsel for him in the legal proceedings to follow but defendant did then, and later, refuse to provide legal counsel.

The complaint then alleged that on February 18, 1954, the administrator of the estate of William Sandell brought a wrongful death action against Gould; that the wrongful death action complaint alleged, among other things, that plaintiff herein negligently, carelessly and improperly discharged a gun, as a result of which, Sandell sustained wounds from which he died on June 21, 1953; that the complaint in the wrongful death action also charged that Gould wilfully, intentionally and maliciously assaulted Sandell by discharging a gun at him and as a result thereof Sandell sustained divers wounds from which he died on June 21, 1953.

It was then alleged, in the instant complaint, that after defendant had refused to provide legal counsel, he, Gould, employed counsel of his own choosing who filed an answer in the wrongful death action and that by his answer, he denied the allegations of the complaint. The complaint then averred that the issues made by the pleadings in the wrongful death action were submitted to the court for determination and culminated in a judgment in favor of the plaintiff and against defendant, Gould, in the sum of $9,000. It was then averred that Gould paid this judgment and in addition thereto, became obligated to pay his attorney fees amounting to $2,500. Attached to the complaint and made a part thereof was, (a) a copy of the insurance policy issued to Gould by defendant; (b) a copy of the complaint in the wrongful death case; (c) a copy of the judgment order in favor of the administrator and against Gould for $9000 and (d) a copy of an instrument showing a satisfaction of this judgment.

The judgment order in the wrongful death action, a copy of which was attached to the complaint found that Sandell, at the time he was killed, on the night of June 20, 1953, was in the exercise of due care and caution for his own safety and that defendant, Gould, was guilty of the negligence charged in count one of the amended complaint but was not guilty of a wilful, intentional and malicious assault on Sandell or guilty of wanton misconduct as charged in counts two and three of the amended complaint in the wrongful death action.

The defendant in its answer to the instant complaint admitted the issuance of the policy of insurance and the coverage therein provided as alleged, but denied that it agreed to defend any suits, even though groundless, brought against the plaintiff in the name of and on behalf of the plaintiff. The answer averred that there was no coverage afforded the plaintiff in connection with Sandell's death, under the exclusion clauses contained in the policy. The answer made no reference to the allegations of the complaint with reference to the employment of counsel by Gould to defend him in the wrongful death case except to state that defendant had no knowledge, sufficient to form a belief, with reference to the allegations of the amended complaint to the effect that Gould had become legally obligated to pay his attorney $2500 as his attorney fees in connection with the defense of the wrongful death action.

As affirmative defenses the answer set up: (a) the exclusion provision which provided: "This policy does not cover damage, loss, liability or obligation arising out of any criminal, wilful, deliberate or malicious act," and, (b) that Gould was convicted of the criminal act of manslaughter in the Kane County Circuit Court in connection with the death of said William Allen Sandell.

As an alternative further affirmative defense defendant alleged that on or about June 20, 1953, plaintiff Gould, wilfully, deliberately and maliciously fired a shot gun in the direction of William Allen Sandell and averred that Gould knew, or should have known, "that as a result of such action on his part, said William Allen Sandell might or could be killed, and that, in fact, said William Allen Sandell was killed because of said action on the part of the plaintiff." Attached to the answer and made a part thereof were copies of: (a) the indictment in the criminal case; (b) the verdict of the jury finding Gould guilty of manslaughter; (c) the judgment order of conviction, and (d) the sentence imposed on Gould. As stated, the trial court denied defendant's motion for judgment on the pleadings, sustained plaintiff's motion, and rendered judgment against the defendant for $11,500.

To sustain the judgment of the trial court appellee insists that the insurance policy issued by appellant to him provided that when he paid the administrator of the estate of William A. Sandell the amount of the judgment the administrator recovered on account of the death of his intestate, because of the negligence of the insured, that then, under the provisions of the policy of insurance, appellant was obligated to pay appellee the amount of said judgment; that it was specifically determined in the wrongful death action, that Sandell's death was occasioned by accidental injuries sustained by reason of insured's negligence; that appellant, under the provisions of its policy, was obligated to defend the wrongful death action but wrongfully refused to do so and after such refusal, appellee was obliged to retain counsel and defend the action and by so doing incurred an additional $2500 obligation for attorney fees. Counsel insists, that the pleadings and affidavits presented no triable issue of fact and that appellee's motion for summary judgment was properly granted by the trial court.

Counsel for appellant insist that the pleadings disclose that the policy upon which the instant action is founded, expressly provided that it did not cover any damage, loss, liability or obligation arising out of any criminal act of the insured; that the death of William A. Sandell was the result of the insured's criminal act and therefore appellant was under no obligation of any kind or character under the provisions of the policy. It is further insisted that the insured's prior conviction of manslaughter in connection with the death of Sandell is conclusive evidence that plaintiff is not entitled to recover in this action and it is also insisted, that appellant, not being liable under the policy was not required to undertake the defense of Gould in the wrongful death action, was justified in refusing to do so and not being liable, the trial court erred in not sustaining defendant's motion for a summary judgment in its favor. Counsel contend that inasmuch as it was not a party to the wrongful death action, it cannot be bound by that judgment and insist that, if it is not entitled to a summary judgment, that then, whether the death of Sandell arose out of a criminal act of appellee or was occasioned by insured's negligence is a question of fact presented by the pleadings and to determine that issue, it is entitled to a jury trial.

The determinative questions presented by this record are: (1) Is appellant, the insurer, conclusively bound, in this proceeding, by the finding and judgment in the proceeding brought against Gould, the insured, in the wrongful death action wherein the administrator of the estate of William A. Sandell was the sole plaintiff and George H. Gould was sole defendant? The trial court held it was. (2) Is the record and judgment of Gould's conviction of manslaughter competent evidence and admissable for any purpose upon a trial of this case? The trial court held it was not. If, it should be held that such record and judgment of conviction are admissable in evidence the question would then arise whether such record and judgment are conclusive of the fact that Sandell lost his life as a result of a criminal act of the insured, Gould, or is such record and judgment only prima facie proof that Sandell lost his life as a result of a criminal act committed by the insured?

Counsel for both parties recognize that the authorities in other jurisdictions are in conflict with reference to the admission of evidence, in a subsequent civil action of a prior conviction of one of the parties of a crime, arising out of the same transaction or occurrence. Some courts admit such evidence against the party convicted as conclusive evidence of the issues decided in the criminal proceeding. Other courts exclude such evidence entirely while in other jurisdictions such evidence is admitted against the party convicted, as prima facie evidence of the issues decided. Counsel for appellee insist, however, that in this state the record of the conviction of appellee for a criminal offense presented no defense to the instant action.

Corbley v. Wilson, 71 Ill. 209 was an action brought by Wilson against Corbley for slander. The defense interposed was that the spoken words were true. The alleged slanderous words charged the defendant with a crime and upon the trial of the slander action, the plaintiff offered and the court admitted, in evidence, the record of his acquittal of the criminal charge. In reversing the judgment for the plaintiff, the Supreme Court ...


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