Farmers Elevator Mut. Ins. Co. v. Burch

• Decision Date: 17 December 1962
• Docket Number: No. 62-0-5,62-0-5
• Citation: 187 N.E.2d 12,38 Ill.App.2d 249
• Parties: FARMERS ELEVATOR MUTUAL INSURANCE COMPANY, a Corporation, Plaintiff-Appellant, v. Zora M. BURCH et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 12

187 N.E.2d 12

38 Ill.App.2d 249

FARMERS ELEVATOR MUTUAL INSURANCE COMPANY, a Corporation, Plaintiff-Appellant, v. Zora M. BURCH et al., Defendants-Appellees.

No. 62-0-5.

Appellate Court of Illinois, Fourth District.

Dec. 17, 1962.

J. E. Horsley, W. E. Larrabee, of Craig & Craig, Mattoon, Parker, Bauer & Parker, Effingham, Paul D. Wilson, General Counsel, Farmers Elevator Mutual Ins. Co., Des Moines, Iowa, of counsel, for appellant.

L. E. Brumleve, Joseph B. Siemer, of Siemer, Brumleve & Dehn, Effingham, for appellees.

CULBERTSON, Justice.

The action now before us originated as a suit for declaratory judgment seeking determination as to a policy of liability insurance issued by plaintiff, Farmers Elevator Mutual Insurance Company to defendant, Effingham Equity, Inc., through a series of transactions giving rise to damages claimed against said Effingham Equity, Inc., by other defendants.

The action was filed under the provisions of Chapter 110, Section 57.1(1961 Illinois Revised Statutes), and sought a determination as to whether the allegations contained in a complaint in another action of Burch et al. v. Effingham Equity, Inc., set up facts which would bring the occurrence within the scope of the policy coverages. The policy under consideration contained these provisions:

'I Coverage A--Bodily Injury Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person and caused by accident.

'Coverage B-Property Damage Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof caused by accident.'

The complaint in the case under consideration, of Burch et al. v. Effingham Equity, Inc., alleged in substance that over a period in excess of two months Effingham Equity, Inc., had maintained a nuisance in the operation of its elevator and had caused or permitted dust from grain, etc. to enter the permises of plaintiffs and caused them physical injury and certain damage to household goods, lawns, and gardens; and also, that the elevator company operated machinery over that period of time causing great vibration which damaged plaintiffs home and other buildings, and made loud noises which annoyed plaintiffs. The elevator company demanded that the insurance company defend its suit under the policy. The insurance company asserted that since the policy provided only for damages 'caused by accident' it considered the policy did not apply. Thereafter, the declaratory judgment action was instituted. Defendant answered the declaratory complaint and also prayed for declaratory judgment and asserted certain additional defenses. On trial of the cause by the Court, without a jury, defendant Effingham Equity, Inc., offered no evidence. Following the hearing the Trial Court entered an order that plaintiff take nothing by its suit, and in substance, that the Court has no power to render a judgment or decree on an anticipated liability which may or may not arise in the future.

While the declaratory judgment act introduced a new concept unknown at common law, its beneficial effect should not be destroyed by illiberal construction (Trossman v. Trossman, 24 Ill.App.2d 521, 524, 165 N.E.2d 368, 80 A.L.R.2d 933). In the instant case the complaint does not allege any damages sustained...