Appeal from the Circuit Court of Champaign County; the Hon.
CHARLES E. KELLER, Judge, presiding. Affirmed.
Plaintiff filed suit in the Circuit Court of Champaign County asking for a declaratory judgment as to whether Wilbur J. Bergman, holder of a certain automobile public liability and property damage policy of the plaintiff, was covered by said policy. The complaint alleged in substance that plaintiff had issued to Wilbur J. Bergman a certain automobile liability insurance policy; that Wilbur J. Bergman was involved in a collision while operating his automobile, in which collision Gary Curtis Cooper, a passenger in the Bergman car, was killed; that the administrator of the estate of Gary Curtis Cooper has filed suit under the Wrongful Death Act against Wilbur J. Bergman; that at the time of the collision Bergman was operating his automobile in a prearranged race or competitive speed test; and that by virtue of certain policy exclusions, plaintiff's policy does not cover the occurrence in question and it is not bound to defend the suit of Cooper's administrator against Bergman. The answers of the defendants in substance deny that Bergman was operating his automobile in a prearranged race or competitive speed test and in addition assert that the exclusions relied upon by plaintiff refer only to a prearranged race or competitive speed test of a commercial or business variety where profit or gain is available to the winner and the hope and aim of the participant.
The case was submitted to a jury solely on the question of whether Bergman was engaged in a prearranged race or competitive speed test. From an examination of the record, no attempt was made by the trial court to construe the exclusion clause relied upon by the plaintiff, prior to submission of the case to the jury, and no instruction was given to the jury as to what was meant by the phrase "prearranged race or competitive speed test" so as to afford the jury some basis for determining whether the factual situation as presented to it was a prearranged race or competitive speed test within the meaning of that phrase. What is meant by the phrase "prearranged race or competitive speed test" was a question of law to be determined by the court. Thompson v. Fidelity & Cas. Co. of New York, 16 Ill. App.2d 159, 148 N.E.2d 9. The jury returned a verdict finding the issues for the plaintiff. Thereafter, on post-trial motion the court set aside the jury's verdict and entered a declaratory judgment order providing in part as follows:
"The Court having further considered said matter and having heard further arguments of counsel finds that said policy of insurance is ambiguous in the terms of the exclusion hereinabove set forth, and that in view of said ambiguity in the terms of said policy, the Court finds that said provisions should be construed most strongly against the plaintiff.
"The Court further finds that said exclusion refers solely to prearranged races or tests of speed such as stock car races or sports car races on a regularly laid out track and set at a specified time, and that said exclusion in law refers only to automobiles operated in such a sports contest for which profits, awards and gains are available to the winner.
"The Court further finds notwithstanding the verdict of the jury in said cause that Wilbur J. Bergman did not operate his automobile on April 24, 1960 in such fashion as to come within the exclusion in said policy of insurance hereinabove set forth."
The trial court thereupon declared in substance, that the exclusion relied upon by plaintiff, did not apply to the factual situation presented and therefore did not exclude coverage to Bergman.
The factual situation as presented to the jury reveals the following. The collision occurred approximately two miles north of Fisher, Illinois, on what is known as the Foosland Road. There are two short curves just north of Fisher, and the road then runs straight north for a distance of about two miles to the crest of a hill where the collision occurred. The road was then concrete on the west half, about nine feet wide, and black top or black top surface on the east half. A few minutes before the collision, the car of Bergman was alongside the car driven by Hieser, near Fisher High School in Fisher, Illinois. At that time they were side by side, the Bergman car headed to the north and the Hieser car headed to the south. One William Moore was in the front seat of the Bergman car and Gary Cooper was in the rear seat. Hieser was alone in his automobile. They talked a few minutes. A short time later, according to Bergman's testimony, he drove out on the Foosland road, and stated that the Hieser car passed him just out of the north limits of Fisher and that he never did pass the Hieser car but was attempting to pass it at about 300 feet from the crest of the hill. He estimated his speed at not over 75 miles per hour. He denied having any conversation with Hieser about a race. He admitted driving on the left side of the road.
William Moore testified he was in the Bergman car and that the occupants of the two cars talked to each other near the school. Although it is not clear by the testimony of this witness when or where the Hieser car passed the Bergman car, he did testify that Bergman was attempting to pass the Hieser car at the time of the collision. He didn't remember stopping just out of Fisher.
Roger Hieser denied stopping his car outside Fisher, but admitted stopping by the side of the Bergman car in Fisher and talking. He next saw Bergman near some stop signs, at the north limits of Fisher. Hieser said Bergman was coming out west and started after he, Hieser, had left the stop sign. He didn't remember if Bergman tried to pass his car, was not sure if Bergman did pass his car, but if so, it was just a little ways. He didn't remember if he signed a statement that he was sitting side by side with Bergman's car and that Bergman wanted to race and that they proceeded to a point north of Fisher where they lined up with the Bergman car on the left side of the road and his car on the right side or east side of the road. Hieser estimated his speed at 70 to 75 miles per hour.
Bergman, Moore and Hieser were vague as to most of their evidence. They couldn't remember or recall as to many questions that were asked. However, all three of them were positive there was no agreement to race and no conversation about a race.
Air Force Sergeant Oliver L. Franklin, who lived on the Foosland Road at the crest of the hill where the collision occurred, saw the Bergman automobile and the Hieser automobile just north of the stop signs at the north limits of Fisher. He watched them maneuver the two automobiles into position side by side and then take off with motors racing and at such speed as to leave black tire marks on the pavement. He drove north on the Foosland Road and watched the two cars as they proceeded side by side, Bergman in the left or southbound lane and Hieser in the right or northbound lane toward the hill crest where the collision occurred. He estimated the speed of the two automobiles at 85 to 90 miles per hour. His testimony was that they stayed side by side until the accident at the crest of the hill when the Bergman automobile seemed to blow up. On cross-examination he stated the two automobiles were abreast all the way up the road, except at the moment of impact of the Bergman car with the Shaw car when, he thought, the Hieser automobile seemed to be just a little bit ahead of the Bergman automobile.
Virginia Franklin, wife of Oliver Franklin, was riding in the front seat with her husband, with their little girl in between them. She corroborated her husband's testimony except she did not testify as to the maneuvering for position. She heard the motors racing, saw the two automobiles take off at great speed, saw the two automobiles travel side by side until they approached the hill and at that point it seemed to her the Hieser automobile was a little ahead.
Michael Hieser, a cousin of the father of Roger Hieser, testified he heard the noise of the two automobiles which he described as loud, and watched the crest of the hill and saw the two automobiles, one in each lane, side by side, coming over the hill, and observed them up to the collision.
Marion Hoffman, who was at his mother's home just off the Fisher-Foosland Road, saw the two automobiles traveling side by side at a speed he ...