APPEAL from the Circuit Court of Cook County; the Hon. PHILLIP
B. BENEFIEL, Judge, presiding.
MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
After an automobile collision with Michael Gleeson, Rita Czyzewski filed suit against him for property damage to her car. Gleeson then filed a counterclaim, alleging bodily injury and property damage to his vehicle, and added Richard Czyzewski as a second counterdefendant. In response to the counterclaim, the Czyzewskis pleaded release as an affirmative defense. Gleeson's reply denied all allegations concerning this release. After hearing the action without a jury, the trial court found Gleeson not guilty on the complaint and entered judgment against Rita Czyzewski on the counterclaim in the amount of $5,491.42. However, the trial court rendered this judgment without first holding a hearing on the affirmative defense. Within 30 days of the entry of judgment, the Czyzewskis filed a motion requesting that such a hearing be held so that the legal effect of the release could be determined. The motion was granted and the trial court, after the hearing was completed, reduced the judgment to $2200 the stipulated amount of property damage to Gleeson's automobile.
Gleeson appeals from the trial court's decision to grant the post-trial hearing on the release and from the court's reduction of his judgment. He contends that the burden of proving the validity of the affirmative defense was on the Czyzewskis because they asserted it, and he argues that this defense was waived when the Czyzewskis failed to substantiate all their allegations concerning the release prior to the completion of the trial. Gleeson asserts that the attorney for the Czyzewskis expressly waived the affirmative defense on the day of trial, and he further argues that if this waiver was caused by the incompetency of plaintiffs' counsel, such alleged incompetency would not provide the Czyzewskis with a legal defense to such waiver. Lastly, Gleeson argues that it was error for the trial court to reduce the amount of its original judgment because the Czyzewskis failed to introduce any evidence supporting their contention that the restrictive wording on the face of the release referred only to automobile property damage payments.
The release in question was signed by Gleeson on December 18, 1972. The release form, for a stated consideration of $5,000, purportedly discharged the Czyzewskis from any and all claims or causes of action arising from their automobile accident with Gleeson on February 5, 1972. However, the following restriction was stamped on the face of the release when it was executed and returned to the payor:
"This release in no way affects the subrogation rights of any collision carrier."
During the post-trial hearing on the affirmative defense, the claims manager for Kenilworth Insurance Company, which provided the Czyzewskis with liability insurance, testified that he entered into settlement negotiations with Gleeson's attorneys after Gleeson filed a claim against the Czyzewskis. In making his decision to offer Gleeson $5,000 for the settlement of his claim, the manager stated that he took into consideration certain medical bills, miscellaneous items and lost wages resulting from bodily injury.
The claims manager also testified that the restrictive wording did not appear on the release when he sent the agreement to Gleeson's attorneys but that the release bore the stamped restriction and Gleeson's signature when returned. However, the claims manager admitted that he accepted the executed release, even though he was aware that the restriction had been stamped on its face.
During the post-trial hearing, the trial court indicated that its $5,491.42 judgment against Rita Czyzewski was based on the following items of damage:
Hospital bill $ 701.42 Doctor bill 190.00 Lost wages 2400.00 Stipulated property damage to Gleeson's automobile 2200.00 ________
The court also made a specific finding that the restrictive language stamped on the release referred only to payments made by Gleeson's collision carrier, Economy Fire and Casualty Company, for property damage to the counterplaintiff's vehicle and not to any payments made under the personal injury protection coverage of Gleeson's insurance policy. Because of this finding the trial court then reduced its judgment to the amount of stipulated property damage to Gleeson's automobile, viz $2200.
Appellant's brief states it has been stipulated that this suit is a subrogation action brought by Economy Fire and Casualty Company, as subrogee of Gleeson, and that Economy paid Gleeson $1351.42 in addition to $2200 for property damage.
The primary question for our consideration is whether the trial court acted improperly in holding a post-trial hearing on the release and in subsequently ...