Appeal from the Superior Court of Cook County; the Hon. DONALD
S. McKINLAY, Judge, presiding. Reversed and remanded with
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.
This is an appeal from a declaratory judgment entered in the Superior Court finding that defendant, Indemnity Insurance Co. of North America, was not required to provide a defense for John J. Gleason in a pending injury action, and further that it was not obligated to pay any judgment in the action against Gleason.
The declaratory action originated as a suit commenced by Nicholas Nebor and Kenneth L. Jayroe, who were injured in a single car collision in Chicago, Illinois, when they were passengers in an automobile being driven by John J. Gleason. That suit sought to recover damages from John J. Gleason, Ford Motor Company, a corporation, and L. & S. Construction Company.
The statement of facts involved is not in dispute. John J. Gleason was employed in Chicago, Illinois, by the Ford Motor Company as a buyer of tools and equipment. Gleason's duties included the placing of purchase requisitions for gauges and fixtures. The plaintiffs in the original action, Nebor and Jayroe, operated a gauge shop in Detroit, Michigan. Gleason had met the plaintiffs through his position with Ford and prior to the occurrence had done business with them.
On July 10, 1956, Nebor and Jayroe came from Detroit to Chicago on a business trip. They went to the Ford Company plant at about 4:00 o'clock and discussed with Ford employees Levin and Polasek, the outlook for additional business between them. Following this meeting, Nebor, Jayroe, Polasek and Smith, an expediter for Ford, left the plant and proceeded to a steak house for dinner where they coincidentally encountered Gleason who was on his vacation. Gleason joined them for dinner, and when they had finished, all five men left the restaurant in a car which had been rented from Hertz Drive-Ur-Self that afternoon by Nebor and Jayroe. Gleason drove the automobile since neither Nebor nor Jayroe were very familiar with Chicago. He drove to a tavern where they had drinks, then to another restaurant, and then to Smith's home where the latter left the group. It was a short time later that the automobile with Gleason driving collided with certain obstructions on a public highway which was undergoing reconstruction at the place of the occurrence.
The complaint in the injury action charges, among other things:
"[t]hat at the time of the occurrence hereinafter complained of, in the nighttime while it was dark, the said automobile was being operated by the defendant Ford Motor Company, a corporation, by its agent and servant, the defendant John L. Gleason, Jr. . . ."
The complaint further charges that at the time and place of the accident Ford Motor Company was careless and negligent in this operation of the motor vehicle
"by its agent and servant, the defendant John L. Gleason, Jr. . . ."
On the date of the occurrence, John J. Gleason owned a 1947 De Soto automobile and carried a policy of automobile liability insurance with Allstate Insurance Company. This policy provides that Allstate would pay "all damages which the insured shall be legally obligated to pay . . . arising . . . out of . . . use . . . of the owned automobile, a substitute automobile or a non-owned automobile." Also that Allstate would defend Gleason in actions within the coverage of the policy, but with reference to an automobile not owned by Gleason, the coverage "shall be excess insurance over any other collectible liability insurance of any kind available to the insured." Allstate defended the claim against Gleason. Subsequently Allstate filed this complaint for declaratory judgment. Prior to trial of this cause, John J. Gleason, L. & S. Construction Company, Continental Casualty Company and Hertz Drive-Ur-Self were dismissed out of the case. Answers were filed on behalf of the remaining defendants.
It is the theory of Allstate, that inasmuch as the allegations made by the injured parties in their complaint against Gleason are clearly within the coverage of the policy of Indemnity Insurance Co., that therefor the trial court erred in holding that Indemnity is not required to provide a defense for Gleason, and is not obligated to pay any judgment that may be rendered against him.
Counsel for Allstate argued that Gleason is entitled to a defense under both the Allstate and Indemnity policies. It is the position of Indemnity that Allstate did not request such a declaration in its complaint nor was the case tried on that theory, stating, "[t]he only declaration sought by Allstate was that I.N.A. and Ford were not entitled to a defense under the policy issued by Allstate to John Gleason. Since Allstate did not seek insurance coverage from I.N.A. for Gleason in the proceeding before Judge McKinlay, such a request cannot be made in this Court."
In support of the contention by Indemnity, that a party cannot shift his theory of the case after judgment and raise a new theory for the first time on appeal, it cites the case of Benson v. Isaacs, 22 Ill.2d 606, 177 N.E.2d 209. We agree with the principle of that case, but feel that it should not be applied here. A mere reading of the complaint would appear to support defendant's contention. However, the record of the hearing on the declaratory judgment indicates that the issue of whether Gleason was entitled to a defense under the Allstate and Indemnity policies was clearly presented to the trial judge and determined. Furthermore, Allstate's prayer for relief asks for an adjudication of the rights of all the parties under the various insurance policies. The fact that such a determination was made by the trial judge is demonstrated by the declaration in the judgment order that Indemnity is not obligated to defend Gleason or pay any judgment against Gleason. A reviewing court should, under these circumstances, give any judgment that ought to have been given in the trial court. Ill Rev Stats, c 110, sec 92. Therefore this court will declare the rights of the parties under the various insurance policies.
There is no primary insurance policy involved in these proceedings. Both Allstate and Indemnity have excess policies. Allstate is defending Gleason in the injury suit. Indemnity has declined to also defend him. The policy of ...