State Farm Mut. Auto. Ins. Co. v. Grebner
| Decision Date | 23 April 1971 |
| Docket Number | Gen. No. 70--182 |
| Citation | 269 N.E.2d 337,132 Ill.App.2d 234 |
| Parties | STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff-Appellee, v. Kate GREBNER, Administrator of the Estate of Otto F. Grebner, deceased, Isabelle E. Leszinske, individually and as Administrator of the Estate of Lyle R. Leszinske, deceased, Doris Osborne, Leo Osborne and Linda Kitzmiller McGee, Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
Fearer & Nye, Oregon, for defendants-appellants.
Gilbert, Powers & Graves, Rockford, for plaintiff-appellee.
Isabelle E. Leszinske, individually and as Administrator of the Estate of Lyle R. Leszinske, deceased, appeals from a declaratory judgment entered by the Circuit Court of Ogle County on May 15, 1970 to the effect that State Farm Mutual Automobile Insurance Company was not obligated under the terms of a certain insurance policy for any legal liability arising out of an accident that occurred on September 8, 1965.
The accident occurred when an automobile driven by Otto F. Grebner swerved across the center of U.S. Highway No. 51, just south of Rochelle, and collided with an automobile driven the other direction. As a result of the collision, both Grebner and Lyle Leszinske, then aged 18 years, died. On April 20, 1966, Isabelle Leszinske instituted an action against the Administrator of the Estate of Otto Grebner under the Wrongful Death Act and recovered a judgment in the amount of $10,000.00 based on a jury verdict. The administrator appealed from that judgment on the grounds that the plaintiff's only remedy was under the Workmen's Compensation Act and that the recovery under the other statute was improper. On December 12, 1967, we reversed the judgment of the trial court in our case of Leszinske v. Grebner, 89 Ill.App.2d 470, 476, 478, 232 N.E.2d 496, 499, and remanded the cause for a new trial. In our decision, we held as a matter of law that Leszinske's death '(arose) out of and in the course of * * *' his employment with Grebner.
In the meantime, State Farm did, on February 9, 1967, file this complaint for declaratory judgment against all concerned parties that sought a finding that it had no obligations under the liability provisions of a policy of insurance issued by it to Otto Grebner. The essence of the complaint was that the accident of September 8, 1965 was not covered under the terms of the policy by reason of the following exclusion:
A hearing was held on April 30, 1970 that consisted almost entirely of arguments of the attorneys in the suit in regard to the applicability of the Workmen's Compensation Act to the accident. At the conclusion of the hearing, the court entered an order that found that the injuries and death of Leszinske 'arose out of and in the course of his employment with Otto F. Grebner * * *' and that, therefore, State Farm had no obligations under the terms of the policy of insurance.
In the brief of the appellant, it is contended that the finding of the trial court was completely unsubstantiated since in fact no evidence whatsoever was taken in the case. After the brief was filed with this court, the trial court did, pursuant to the motion of State Farm, correct the report of proceedings to include the following, previously omitted, notation:
'Prior to the reported portion of the hearing Mr. Graves produced the official file maintained by the Clerk of the Circuit Court of Ogle County, Illinois, pertaining to the case of Isabelle E. Leszinske, administrator of the Estate of Lyle R. Leszinske, a minor deceased, versus John B. Nink, Public Administrator of the Estate of Otto E. Grebner, pending under General Number 66--118.
Mr. Graves requested the Court to take judicial knowledge (sic) of the official file and the contents thereof.
The court took judicial knowledge of the official file and the contents thereof.'
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