Burkitt v. Downey

• Decision Date: 22 November 1968
• Docket Number: Gen. No. 68--55
• Parties: Earl W. BURKITT, Plaintiff-Appellant, v. John L. DOWNEY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 901

242 N.E.2d 901

102 Ill.App.2d 373

Earl W. BURKITT, Plaintiff-Appellant, v. John L. DOWNEY, Defendant-Appellee.

Gen. No. 68--55.

Appellate Court of Illinois, Third District.

Nov. 22, 1968.

Rehearing Denied Dec. 26, 1968.

Jacob Cantlin and Donald E. Blodgett, Rock Falls, for plaintiff-appellant.

Yalden, Ridings & Remencius, Rockford, for defendant-appellee.

CULBERTSON, Justice.

Appeal has been prosecuted in this case from an order of the circuit court of Whiteside County which, pursuant to a petition filed under Section 72 of the Civil Practice Act (Ill.Rev.Stat.1967, chap. 110 par. 72), vacated a default judgment and gave defendant twenty days to answer a complaint filed in the original controversy. We have jurisdiction since, in a Section 72 proceeding, such an order is considered to be final and appealable. Cowen v. Harding Hotel Co., 396 Ill. 477, 480, 72 N.E.2d 177; Christian v. Smirinotis, 388 Ill. 73, 57 N.E.2d 457; Cf. Williams v. Morton, 80 Ill.App.2d 442, 225 N.E.2d 671.

In the order of their occurrence, undisputed facts gleaned from the record show that on November 7, 1966, the plaintiff, Earl W. Birkitt, was a guest passenger in a 1966 automobile being driven along a rural section of Illinois Route 78 by the defendant, John L. Downey. The car left the road on a curve and struck a tree, and defendant reported to the investigating police officer that a tire had blown just as the car entered the curve. Plaintiff, it appears, suffered a broken collarbone. On June 15, 1967, an attorney wrote to defendant stating that he had been consulted by plaintiff concerning a claim for injuries arising out of the accident, and requesting defendant to come in to discuss the matter before any legal action was taken. Defendant immediately took the letter to his local insurance agent in Sterling, Illinois, and the latter, on June 21, 1967, forwarded it to the home office of the insurer together with a review of the facts surrounding the accident. Thereafter, on July 12, 1967, plaintiff filed a suit against defendant, and the latter was served with summons the following day at 5:30 P.M. The complaint alleged that defendant had 'wilfully and wantonly started to strike the Plaintiff about the face and head and lost control of his car, ran off the road and struck a tree.' On July 14, 1967, defendant took the complaint and summons to his insurance agent and the latter forwarded them to the company together with a covering letter asking for prompt attention and for notification as to whether the company would defend the action.

On August 16, 1967, four days after the return date on the summons, plaintiff took a default against defendant for failure to appear and plead, presented evidence relating to damages, and was awarded a judgment of $4,000.00. The following day plaintiff's attorney wrote a letter to defendant advising him of the judgment and requesting that defendant, for a purpose of avoiding garnishment of his wages, come to the attorney's office to discuss settlement. The letter also informed defendant that the attorney would be on vacation and not available for discussion until after September 5, 1967. As had occurred in the prior instances, defendant took the letter to his insurance agent and the latter, on August 19, 1967, sent it to the insurer. It was not until September 22, 1967, more than thirty days after judgment, that the company retained an attorney in the matter. Thereafter, on September 26, 1967, defendant's attorney contacted plaintiff's counsel, and two days later the latter sent a letter to the former stating that plaintiff's doctor bill totaled $145.00 and his hospital bill $92.50.

Defendant's Section 72 petition to vacate the default judgment was filed October 31, 1967. Among other things, it alleged that he had a meritorious defense to the original controversy; that he did not beat the plaintiff as alleged in the latter's complaint; that the blowout of a tire was the cause of the accident; that defendant had diligently turned over the complaint and summons to the insurer's agent; that the insured had either failed to receive or had lost the summons and complaint; and that defendant, although his whereabouts were known to plaintiff, was not notified that plaintiff was going to take a default and offer proof. After a motion to strike the petition had been denied, plaintiff filed an answer and at the hearing which followed defendant presented various letters as documentary support for his petition. Also presented was an affidavit of an officer of the insurer which acknowledged receipt of the complaint and summons, but stated that they had been misplaced, and that proper entries had not been made in its law ledger due to the fact the company had lost its experienced law ledger clerk and was, at the time in question, in the process of hiring and training new personnel. The trial court granted the petition and this appeal by the plaintiff has followed.

Since the inception of Section 72 it has come to be well settled that a petition to set aside a default judgment must adequately set forth sufficient facts to show first, a meritorious defense, and second, due diligence on the part of the defaulted party. (Detres v. Rojo, 80 Ill.App.2d 38, 225 N.E.2d 100; Calvo v. Willson, 59 Ill.App.2d 399, 207 N.E.2d 496; Elmwood Ford Motors, Inc. v. Mardegan, 42 Ill.App.2d 342, 192 N.E.2d 445.) Equally well settled since the decision in Ellman v. De Ruiter, 412 Ill. 285, 106 N.E.2d 350, is the concept that a Section 72 petition 'invokes the equitable powers of the court, as justice and fairness require, to the end that one may not enforce a default judgment attended by unfair, unjust or unconscionable circumstance.' (Elfman v. Evanston Bus Co., 27 Ill.2d 609, 613, 190 N.E.2d 348, 350.) In short, as did the court in Stehman v. Reichhold Chemicals, Inc., 57 Ill.App.2d 40, 206 N.E.2d 299, we interpret the Elfman and Ellman decisions to mean that even though there may have been a lack of due diligence in presenting a defense, a default judgment may nonetheless be set aside if justice and good conscience requires it.

No issues are raised on appeal as to the matter of a meritorious defense, both the trial court and the plaintiff apparently being satisfied that such a defense was shown, thus our consideration need be directed only to questions of due diligence and the exercise of equitable powers. In an oral opinion the trial court found that defendant had acted diligently and reasonably by turning over the summons, complaint and various items of correspondence to his insurer and, in vacating the judgment, expressly held that the apparent negligence of the insurer was not attributable to defendant. At the same time, the court expressly found that plaintiff had not been guilty of unfair or unconscionable conduct. And having made the latter finding, it is our opinion, based upon Chmielewski v. Marich, 2 Ill.2d 568, 119 N.E.2d 247, 42 A.L.R.2d 1023, that the trial court was plainly wrong when it permitted the insurer's inaction to serve as an excuse for defendant's failure to appear and plead in the action plaintiff brought against him. (See also: Colletti v. Schrieffer's Motor Service, Inc., 38 Ill.App.2d 128, 186 N.E.2d 659.) In Chmielewski the court considered a contention of a defaulted defendant that his Section 72 petition should have been granted on the ground that the delivery of a summons to his insurance brokers constituted due diligence, notwithstanding the insurer's subsequent negligence in failing to defend. Rejecting this argument, the Supreme Court said: 'This contention is without merit. His reliance on the insurance brokers is not a ground for relieving him of the consequence of the brokers' apparent failure to fulfill their undertaking. We are not, of course, concerned here with the rights of Frank Fara (the defaulted defendant), the brokers or the insurers as among themselves. The sole question is whether, as between Frank Fara and the plaintiff, Fara's failure to appear and make his defense was excusable. We hold that it was not.' (2 Ill.2d at 576, 577, 119 N.E.2d at 251, 252.) It is true, as was observed by the court in Stehman v. Reichhold Chemicals, Inc., 57 Ill.App.2d 40, 206 N.E.2d 299, that Chmielewski predates the apparent holding in Elfman v. Evanston Bus Co., 27 Ill.2d 609, 190 N.E.2d 348, that even though there may have been a lack of due diligence, a default judgment may be set aside if equity so requires. But manifestly, the legal philosophy of Elfman can be permitted to prevail over the express...