Lynch v. Wolverine Ins. Co., Gen. No. 53575

• Court: United States Appellate Court of Illinois
• Writing for the Court: SCHWARTZ; DEMPSEY, P.J., and McNAMARA
• Citation: 261 N.E.2d 466,126 Ill.App.2d 192
• Decision Date: 04 June 1970
• Docket Number: Gen. No. 53575
• Parties: Michael J. LYNCH and Hartford Insurance Company, Plaintiffs-Appellants, v. WOLVERINE INSURANCE COMPANY, a foreign corporation, Defendant-Appellee.

Page 466

261 N.E.2d 466 126 Ill.App.2d 192 Michael J. LYNCH and Hartford Insurance Company, Plaintiffs-Appellants,
v.
WOLVERINE INSURANCE COMPANY, a foreign corporation,
Defendant-Appellee. Gen. No. 53575. Appellate Court of Illinois, First District, Third Division. June 4, 1970.

[126 Ill.App.2d 193] Frank Glazer, Chicago, John W. Purney, Chicago, of counsel for appellants.

E. Paul Lamphier, Chicago, for appellee.

SCHWARTZ, Justice.

Michael Lynch and Hartford Insurance Company (Hartford) brought this action to collect on a draft issued to them by the defendant. It is undisputed that when the draft was presented for payment, the defendant refused to honor it. When the case was called for trial, the court after some colloquy with the lawyers and the examination of some documents entered judgment on the pleadings for the defendant, although the defendant made no motion for such procedure. From that judgment the plaintiffs appeal. They contend that triable issues of fact were raised by the pleadings and that they were denied their right to a trial on the merits.

Counsel for the defendant-appellee has filed an appearance in this court but has not filed a brief. Although it has been held that that fact alone is sufficient to permit a reviewing court to summarily reverse the judgment of the trial court, the ends of justice are better served if litigation is determined according to the substantive rights of the parties and not by procedural default. As a general rule the trial court's judgment should not be reversed except after consideration of the merits of the appeal. Daley v. Jack's Tivoli Liquor Lounge, Inc., 118 Ill.App.2d

Page 467

264, 254 N.E.2d 814; Perez v. Janota, 107 Ill.App.2d 90, 246 N.E.2d [126 Ill.App.2d 194] 42; Matyskiel v. Bernat, 85 Ill.App.2d 175, 228 N.E.2d 746. We will therefore consider the issues involved. The facts follow.

Defendant issued an automobile liability insurance policy to one Richard McCarthy. It included a property damage clause with a coverage limit of $5000. The policy was in effect on December 24, 1966 when McCarthy drove his automobile into three parked cars. Plaintiff Lynch was the owner of one of the damaged cars. He was insured under a policy issued by the plaintiff Hartford which covered the loss under a $50 deductible collision clause. Lynch's car was repaired at a cost of $647.41, of which Lynch paid $50 and Hartford paid the balance. Hartford notified the defendant of the claim it and Lynch had...