Prochotsky v. Union Central Life Ins. Co.

• Decision Date: 02 November 1971
• Docket Number: Gen. No. 53857
• Citation: 276 N.E.2d 388,2 Ill.App.3d 354
• Parties: Jan PROCHOTSKY, Plaintiff-Appellant, v. The UNION CENTRAL LIFE INSURANCE COMPANY, a corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 388

276 N.E.2d 388

2 Ill.App.3d 354

Jan PROCHOTSKY, Plaintiff-Appellant, v. The UNION CENTRAL LIFE INSURANCE COMPANY, a corporation Defendant-Appellee.

Gen. No. 53857.

Appellate Court of Illinois, First District, Second Division.

Nov. 2, 1971.

Synek, Bishart & Solomon. Chicago, Henry T. Synek, Chicago, of counsel, for plaintiff-appellant.

Peterson Lowry, Rall, Barber & Ross, Chicago, Richard V. Henry, Jr., Michael M. Lane, Chicago, of counsel, for defendant-appellee.

SCHWARTZ, Justice.

This is a suit in equity in which plaintiff seeks to recover commissions alleged to be due in connection with an insurance policy issued on the life of one Abraham Cooper which plaintiff avers that he as agent procured for the defendant. The court held that the suit was barred by a prior judgment rendered in a suit at law between the same parties. Plaintiff on appeal contends that the issues presently raised were not disposed of in the eariler proceeding and hence the doctrine of res judicata is not applicable.

With respect to the first suit which was filed on May 17, 1967, plaintiff alleged that he had procured a life insurance policy in the sum of $100,000 on the life of Cooper, that the policy was written with the name Joseph R. Stercl as the agent of record and that plaintiff had an Oral contract with the defendant by the terms of which he was entitled to all commissions, including renewal commissions, on policies procured by him. The plaintiff further alleged that Stercl had in writing assigned to him any right that he (Stercl) had to the commission on the Cooper policy and that the assignment was duly delivered to defendant. Plaintiff sought a judgment holding defendant liable for the unpaid commission earned and the renewal commissions to become due on the Cooper policy. A motion by defendant for summary judgment was granted by the court on October 15, 1968, 'all issues being found in favor of the defendant.' Plaintiff then presented to the trial court a motion for leave to file an amended complaint in chancery. The trial court denied the motion.

With respect to the suit now before us, on the same day that defendant's motion for summary judgment was allowed in the first suit and plaintiff's acton at law was dismissed, plaintiff filed this suit in chancery in which he seeks an accounting, injunctive relief and the declaration of a constructive trust on the assets of defendant. He alleges that there was an oral contract between defendant and himself under which the defendant promised to honor all assignments of commissions presented by him where he had solicited and investigated the assured and where, at defendant's request, the insurance contract was written in the name of another agent. Defendant moved to dismiss on the ground of res judicata, which motion was granted by the trial court on December 20, 1968. The sole issue presented on appeal is whether the trial court in the first suit erred in sustaining the defense of res judicata.

Plaintiff argues that the action at law was based on an alleged breach of a practice in the insurance business while the suit in chancery was based on defendant's alleged breach of an oral agreement and hence the doctrine of res judicata is not applicable. The issue involved both in the law suit and in the chancery action was plaintiff's right to recover commissions due on the policy in question. The oral agreement alleged in chancery could have been alleged in the action at law. The issues are identical in substance.

The law requires that both in law and in equity a plaintiff must present all grounds of recovery he may have. He cannot preserve the right to bring a second action after loss of the first merely by limiting the theories of recovery opened by the pleadings in the first action. F. L. Mendez & Co. v. General Motors Corp., 161 F.2d 695 (7 Cir. 1947); Ernest Freeman & Co. v. Robert G. Regan Co. 332 Ill.App. 637, 76 N.E.2d 514; Setliff v. Reinbold, 73 Ill.App.2d 208, 218 N.E.2d 814; Pratt v. Baker, 79 Ill.App.2d 479, 223 N.E.2d 865; ...