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Smith v. Moran

JULY 13, 1965.

GLENNA M. SMITH, PLAINTIFF-APPELLEE,

v.

DOROTHY MORAN, DEFENDANT, BADGER MUTUAL INSURANCE COMPANY, RESPONDENT-APPELLANT.



Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Lake County; the Hon. PHILIP W. YAGER, Judge, presiding. Judgment affirmed.

MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT.

This case involves the interpretation of a homeowner's insurance policy issued by the appellant, Badger Mutual Insurance Company, to the defendant, Dorothy Moran. The plaintiff, Glenna M. Smith, had obtained a $15,000 judgment against the assured, Dorothy Moran, and then brought a Citation to Discover Assets action against the insurance company. The result of the citation proceeding was an order on the insurance company to pay Glenna Smith $15,000, and this is an appeal by the company from that order.

A brief resume of the original case between Smith and Moran will be helpful to an understanding of the present litigation. The plaintiff filed a two count complaint against the defendant for damages sustained as a result of an assault. The first count stated that the defendant "with force and arms, assaulted the plaintiff, and shot off a certain gun, . . . at and against the plaintiff, . . ." The second count stated that the defendant "recklessly, willfully, wantonly and maliciously discharged a certain gun . . . with a deliberate intent to inflict injury, or with an intentional disregard for the safety of the plaintiff. . . ."

The evidence adduced at trial showed that the plaintiff was a waitress in McCormick's Tavern and Restaurant. The plaintiff and defendant were not acquainted with each other. The defendant came into the restaurant and was overheard by the plaintiff to ask another waitress, Dolores Nelson, if she could speak to her. Mrs. Nelson answered that she was too busy and the defendant replied "you had better talk to me now." Plaintiff was standing just to the rear of Mrs. Nelson at the time. Plaintiff then heard a shot, followed by Mrs. Nelson saying "Oh My God." This was followed by another shot, at which time plaintiff felt a terrible pain in her left leg. She looked "and saw the defendant with a gun shooting at Mrs. Nelson."

The jury returned a verdict in favor of the plaintiff in the sum of $15,000, and gave an affirmative answer to the following special interrogatory: "Was the defendant, Dorothy Moran, at the time and place in question guilty of wilful, wanton and malicious conduct and was malice the gist of the action?" The trial court entered judgment on the verdict and an appeal followed. This Court affirmed the judgment. Smith v. Moran 43 Ill. App.2d 373, 193 N.E.2d 466.

Thereafter, the plaintiff brought this ancillary action in accordance with Ill. Rev Stats c 110, § 101.24 (1963). At the hearing on the citation, it was found that the company was obligated under sec II, par 1 of its policy of insurance to pay on behalf of the defendant ". . . all sums which the Insured shall become legally obligated to pay as damages because of bodily injury . . . sustained by any person. . . ." There was an exclusion in the policy which provided that "Section II of this policy does not apply: . . . (c) to injury . . . caused intentionally by or at the direction of the Insured." The trial court ruled in effect that this exclusionary provision did not apply to the facts of this case.

It is the contention of the appellant that the act of the defendant was intentional and, therefore, excluded from coverage under its policy. To buttress its position, the appellant refers to the jury's affirmative answer to the interrogatory, and the following language of this Court in the original appeal (43 Ill. App.2d at p 377):

"We think the evidence here shows that the shooting was a wrongful act, intentionally done and that there is no evidence remotely suggesting that the shooting was accidental, justified or with just cause or provocation."

Appellant further relies on what it says is the plain, ordinary and generally understood meaning of the exclusionary paragraph in question.

The plaintiff contends that even though the act of Dorothy Moran was intentional, still, the resulting injury to plaintiff was not intentional, and consequently, the exclusionary clause does not apply. Therefore, the sole task for this Court is to interpret the exclusionary clause as applied to the facts in the original suit.

The appellant cites Hill v. Standard Mut. Cas. Co. 110 F.2d 1001, as authority for its contention. However, the exclusionary clause in that case stated that the insurance company would not be liable for damage caused by intentional acts of the assured. The case before us relates to injury caused intentionally by or at the direction of the insured. The balance of the cases cited by appellant concern factual situations different from that presented here. They are cases wherein the insured sought recovery based upon injuries sustained by the intended victim, as, for example, if Dolores Nelson, the intended target, were seeking recovery in the case before us.

Although this precise question has not been passed upon by a court of review in this State, still, we have a somewhat analogous situation in the case of Taylor v. John Hancock Mut. Life Ins. Co. 11 Ill.2d 227, 142 N.E.2d 5. This was an action brought upon a life insurance policy providing for death benefits where death occurs "as a result of bodily injury sustained solely through external, violent and accidental means, directly and independently of all other causes." Briefly stated, the facts were that the decedent, Frank Owen, along with Logan Brooks and John Owen, agreed to burn the house owned by John Owen for the purpose of collecting fire insurance. After they poured ten gallons of gasoline about the inside of the home in preparation for their arsonous act, an unexpected explosion occurred which trapped Frank Owen in the home and resulted in his death. The beneficiary under Frank Owen's life insurance policy brought an action to recover on the policy and the trial court denied recovery. On appeal, the appellate court reversed the trial court (9 Ill. App.2d 330) which reversal was affirmed by the Supreme Court, Taylor v. John Hancock Mut. Life Ins. Co., supra, which stated at p 230;

"The coverage question, pertaining to whether the insured's death occurred solely through `accidental means . . . independently of all other causes,' is discussed at length in the Appellate Court opinion, the conclusions of which we adopt. In Illinois, the courts have adopted a liberal attitude in their interpretation of this common insurance provision. In effect, `accidental means' has been held to be synonymous with `accidental result,' and defined as something which happens by chance or fortuitously, without intention or design, and which is unexpected, unusual and unforeseen. (See, e.g., Yates v. Bankers Life and Casualty Co. 415 Ill. 16; Rodgers v. Reserve Life Ins. Co. 8 Ill. App.2d 542.) While it is true the parties intended to burn the house, they obviously did not intend the fire to start when it did. To this extent it was `accidental' as the term has heretofore been interpreted.

"But even though there is coverage under the terms of the policy, the defendant still insists that it would be against public policy to permit a recovery. This is predicated on the fact that the ...


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