Lakatos v. Prudence Mut. Cas. Co.

• Decision Date: 01 August 1969
• Docket Number: Gen. No. 52189
• Parties: Geza LAKATOS, Lajos Gsonka and Andrew Horvath, Assignees of George Garda, Plaintiffs-Appellants, v. PRUDENCE MUTUAL CASUALTY COMPANY, a Mutual Insurance Company, Defendant- Appellee.
• Court: United States Appellate Court of Illinois

Page 123

252 N.E.2d 123

113 Ill.App.2d 310

Geza LAKATOS, Lajos Gsonka and Andrew Horvath, Assignees of George Garda, Plaintiffs-Appellants, v. PRUDENCE MUTUAL CASUALTY COMPANY, a Mutual Insurance Company, Defendant- Appellee.

Gen. No. 52189.

Appellate Court of Illinois, First District.

Aug. 1, 1969.

Jerome H. Torshen, Chicago, for plaintiffs-appellants; Benjamin H. Cohen, Chicago, of counsel.

George F. Barrett, Sidney Z. Karasik, Ellis B. Rosenzweig, Chicago, for defendant-appellee; Donald E. Joyce, Chicago, of counsel.

RYAN, Justice.

The plaintiffs were passengers in an automobile owned and driven by George Garda. An accident occurred in Pennsylvania and each plaintiff suffered personal injuries. Also damaged in the accident were certain items of personal property belonging to the plaintiffs which consisted primarily of musical instruments. These items were in the Garda vehicle. The plaintiffs instituted suits in Pennsylvania and recovered judgments against Garda for their personal injuries and for damage to their property. The defendant, Prudence Mutual Casualty Company, had issued an automobile liability insurance policy to Garda which covered the automobile involved in the accident and which insured Garda against liability for personal injuries and property damage. Prudence satisfied plaintiffs' judgments against Garda for personal injuries but refused to pay to the plaintiffs the amount of any judgments relating to property damages. Garda assigned his right of action against Prudence to the plaintiffs who instituted this action against Prudence in the Circuit Court of Cook County, Illinois seeking to recover the amount of the Pennsylvania judgments for damage to their property.

Defendant, Prudence, filed a motion to dismiss the Complaint alleging that the amount the plaintiffs were seeking to recover was for property damage which was sustained while the plaintiffs' property was being transported by the defendant's insured, George Garda. The motion alleged that the policy of insurance in question specifically excluded from property damage any injury to or destruction of property transported by the insured. A copy of the policy was attached to the motion. Coverage B of the policy related to property damage. The exclusions portion of the policy provides that: 'This policy does not apply * * *'. The policy then lists the various exclusions. Exclusion (f) provides:

'Under coverage B, to injury or destruction of property owned or transported by the insured, or property rented to or in charge of the insured other than a residence or private garage injured or destoryed by a private passenger automobile covered by this policy.'

Following a hearing on the defendant's motion to dismiss the court entered the following order:

'This cause coming to be heard on Motion of Defendant to Dismiss and the court being advised in the premises:

It is hereby ordered that the Motion to Dismiss plaintiffs' Complaint is granted. Complaint dismissed.'

The plaintiffs have appealed from this order.

The briefs filed in this court dealt exclusively with the interpretation and the application of Exclusion (f) quoted above. However, for the purpose of oral argument in this court the defendant engaged additional counsel. About ten days before oral argument the new counsel for the defendant filed a Motion to Dismiss Appeal alleging that the order appealed from was not a final and appealable order. This court has taken this motion with the appeal and of course, must consider the same before proceeding further.

We feel that the order was final and appealable. The Motion to Dismiss filed in the trial court by the defendant did not address itself to any defects in the allegations or to deficiencies that could have been cured by amendment. It clearly stated that the plaintiffs' claim was for damage to property which was occasioned while the property was being transported in the Garda automobile and that the policy of insurance excluded such coverage. The motion then prayed 'that the plaintiffs' suit be dismissed at plaintiffs' cost.' Plainly the motion to dismiss was a motion to dismiss plaintiffs' suit. It was treated as such by both parties in the trial court and in this court until about 10 days before oral argument. The fact that the handwritten order prepared by counsel for the defendant following the court's oral ruling on defendant's motion referred to the motion as a Motion to Dismiss the Complaint and recited 'Complaint dismissed', does not negate the finality of the order.

The defendant contends that the order on its face must provide that the defendant go hence without day or that the plaintiffs' cause be dismissed. We do not consider such words of art necessary to make an order final if it is, in fact, a final order. The test of finality of the order lies in the substance and not the form. Peach v. Peach, 73 Ill.App.2d 72, 218 N.E.2d 504. To be final and appealable the order must terminate the litigation between the parties on the merits of the cause. It need not dispose of all of the issues presented by the pleadings. It must be final in the sense that it disposes of the rights of the parties either upon the entire controversy or upon some definite and separate part thereof. Village v. Niles v. Szczesmy, 13 Ill.2d 45, 147 N.E.2d 371.

The order of a trial court dismissing or striking a complaint which if affirmed might result in the filing by the plaintiff of a new suit or an amended complaint involving the same cause of action is not final and appealable because the order has not terminated the litigation between the parties. Schoen v. Caterpillar Tractor Co., 77 Ill.App.2d 315, 222 N.E.2d 332.

If the order is based upon a technical legal deficiency in the pleadings (Pratt v. Baker, 79 Ill.App.2d 479, 223 N.E.2d 865), or upon a matter that can be cured by an amended pleading (Martin v. Masini, 90 Ill.App.2d 348, 232 N.E.2d 770) then the order is not final and appealable.

We hold that the order in the present case was a final adjudication of the rights of the respective parties involved. It did not rest upon a technical legal deficiency in the pleadings nor upon a matter that could be cured by an amended complaint. It was entered in response to the prayer to dismiss the plaintiffs' suit contained in the Motion to Dismiss. A dismissal of the suit and adjudication of the rights of the parties is what was sought and accomplished.

As to the merits of the controversy, we hold that the provisions of Exclusion (f) above quoted applied to the property of the plaintiffs and that they cannot recover from the defendant.

The plaintiffs insist that the property was not being transported by the insured but was, in fact, being transported by the plaintiffs. They reason that since they were in Garda's automobile the property was in their possession and was being transported by them and not by Garda. We do not consider the nature of the plaintiffs' possession or right to possession of the property involved important. They may well have had certain aspects of possession with regard to the property. The fact remains, however, that these items of property were in the insured's automobile which was being operated by the insured. The insured controlled the movements of the automobile and likewise the movements of the plaintiffs' property therein. When the insured caused the automobile to move, the plaintiffs' property likewise moved. When he caused it to stop, the plaintiffs' property likewise stopped. The insured controlled the speed at which the property was...