Appeal from the Circuit Court of Winnebago County, Seventeenth
Judicial Circuit; the Hon. ALBERT S. O'SULLIVAN, Judge,
presiding. Judgment affirmed.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.
The question presented by this appeal is whether the insurance policy issued to Byron E. Emanuel by the defendant, Country Mutual Insurance Company (Country Mutual), provided uninsured vehicle coverage under which the plaintiffs may recover even though the alleged tort-feasor, Charles Toney, (now deceased), carried a valid policy of liability insurance within the meaning of the Illinois Financial Responsibility Law (Ill Rev Stats 1967, c 95 1/2, pars 7-101 to 7-503 incl.).
The plaintiffs filed a three-count complaint against the defendants. In Count I, the plaintiff, Roy J. Smiley, sought to recover damages against the defendant, Robert C. Bourland, Jr., as administrator of the estate of Charles Toney, deceased, in the sum of $50,000; in Count II, the plaintiff, Patricia Emanuel, as administrator of the estate of Byron E. Emanuel, deceased, sought to recover damages in the same amount against the same defendant; in Count III, the plaintiffs sought a declaratory judgment, asked that the court construe the uninsured motorist clause of the insurance policy issued to Emanuel by Country Mutual, and declare that thereunder Country Mutual is liable to the plaintiffs for any judgment which either of them may recover against Robert C. Bourland, Jr., as administrator of the estate of Charles Toney, deceased, in excess of the policy limits of the insurance carried by said Toney.
The trial court dismissed Count III of the plaintiffs' complaint on motion of the defendant, Country Mutual, and the plaintiffs appealed.
Byron E. Emanuel, now deceased, and Roy J. Smiley, were involved in an automobile accident with Toney, who carried liability insurance with Manchester Insurance Company with liability limits in the amount of $10,000 for each person and $20,000 for each accident. Emanuel carried liability insurance with Country Mutual, and the uninsured vehicle coverage thereunder was in the sum of $50,000 for each person and $100,000 for each accident.
The complaint alleged that Emanuel was driving his 1963 Ford and Smiley was a passenger therein at the time and place of the accident in question; that Toney then and there negligently drove his car over the center line of the highway and struck Smiley's car head-on; that Toney's negligent conduct was the proximate cause of the injuries arising out of such accident.
The uninsured vehicle clause of the Country Mutual policy provided:
"Section II PROTECTION AGAINST BODILY INJURY BY UNINSURED VEHICLES.
"Coverage U Damages for Bodily Injury Caused by Uninsured Vehicles.
"To pay all sums which the Insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an Uninsured Vehicle because of bodily injury, including death resulting therefrom, hereinafter called `bodily injury,' sustained by the Insured, caused by accident and arising out of the ownership, maintenance or use of such Uninsured Vehicle; provided, for the purposes of this coverage, determination as to whether the Insured or such representative is legally entitled to recover such damages, and if so the amount thereof shall be made by agreement between the Insured or such representative and the Company, or, if they fail to agree and the Insured or the Company so demands, by arbitration."
Under the same section, the Contract of Insurance also contains the following:
"DEFINITIONS: With Respect to this Section:
"UNINSURED VEHICLE MEANS:
"(1) a vehicle with respect to the ownership, maintenance or use of which there is no bodily injury liability bond or bodily injury liability insurance policy applicable at the time of the accident with respect to any person or organization ...