{ "id": 3195548, "name": "WAYNE LEE THORNTON, Plaintiff-Appellant, v. BEN PAUL et al., Defendants. - (ILLINOIS FOUNDERS INSURANCE COMPANY, INC., Garnishee-Appellee.)", "name_abbreviation": "Thornton v. Paul", "decision_date": "1980-06-02", "docket_number": "No. 15875", "first_page": "121", "last_page": "133", "citations": [ { "type": "official", "cite": "85 Ill. App. 3d 121" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "374 N.E.2d 194", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "71 Ill. 2d 166", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5448796 ], "opinion_index": 0, "case_paths": [ "/ill-2d/71/0166-01" ] }, { "cite": "400 N.E.2d 921", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "78 Ill. 376", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "400 N.E.2d 501", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "80 Ill. App. 3d 829", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3232619 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/80/0829-01" ] }, { "cite": "157 N.E.2d 417", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "16 Ill. 2d 321", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2762253 ], "opinion_index": 0, "case_paths": [ "/ill-2d/16/0321-01" ] }, { "cite": "100 S. Ct. 87", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1959, "opinion_index": 0 }, { "cite": "62 L. Ed. 2d 56", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1959, "opinion_index": 0 }, { "cite": "387 N.E.2d 312", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "75 Ill. 2d 22", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2989590 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-2d/75/0022-01" ] }, { "cite": "89 S. Ct. 867", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "21 L. Ed. 2d 776", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "393 U.S. 1084", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11426212, 11426151, 11426343, 11426384, 11426261, 11426296 ], "opinion_index": 0, "case_paths": [ "/us/393/1084-02", "/us/393/1084-01", "/us/393/1084-05", "/us/393/1084-06", "/us/393/1084-03", "/us/393/1084-04" ] }, { "cite": "235 N.E.2d 23", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "93 Ill. App. 2d 24", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2646523 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/ill-app-2d/93/0024-01" ] }, { "cite": "131 N.E.2d 367", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "8 Ill. App. 2d 227", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5150031 ], "weight": 2, "pin_cites": [ { "page": "233" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/8/0227-01" ] }, { "cite": "319 N.E.2d 760", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "59 Ill. 2d 236", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2960564 ], "opinion_index": 0, "case_paths": [ "/ill-2d/59/0236-01" ] }, { "cite": "306 N.E.2d 872", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "56 Ill. 2d 237", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5403960 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-2d/56/0237-01" ] }, { "cite": "332 N.E.2d 51", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "29 Ill. App. 3d 939", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2503327 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/29/0939-01" ] }, { "cite": "203 N.E.2d 160", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "54 Ill. App. 2d 51", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5282301 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/54/0051-01" ] }, { "cite": "384 N.E.2d 335", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "345" }, { "page": "343" }, { "page": "343" } ], "opinion_index": 0 }, { "cite": "74 Ill. 2d 132", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994842 ], "weight": 4, "pin_cites": [ { "page": "155" }, { "page": "151" }, { "page": "151" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0132-01" ] }, { "cite": "366 N.E.2d 1048", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "51 Ill. App. 3d 337", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3383978 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-app-3d/51/0337-01" ] }, { "cite": "78 Ill. 2d 376", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3074014 ], "opinion_index": 1, "case_paths": [ "/ill-2d/78/0376-01" ] }, { "cite": "245 N.E.2d 124", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "105 Ill. App. 2d 133", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1598853 ], "opinion_index": 1, "case_paths": [ "/ill-app-2d/105/0133-01" ] }, { "cite": "108 N.E. 816", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1969, "opinion_index": 1 }, { "cite": "348 Ill. App. 279", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5098475 ], "year": 1969, "opinion_index": 1, "case_paths": [ "/ill-app/348/0279-01" ] }, { "cite": "7 N.E.2d 626", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "289 Ill. App. 508", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3198265 ], "opinion_index": 1, "case_paths": [ "/ill-app/289/0508-01" ] }, { "cite": "72 A.L.R.3d 1090", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1976, "pin_cites": [ { "page": "1100" } ], "opinion_index": 1 }, { "cite": "400 N.E.2d 921", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 } ], "analysis": { "cardinality": 1137, "char_count": 29084, "ocr_confidence": 0.862, "pagerank": { "raw": 5.8591662004228935e-08, "percentile": 0.36545914452927564 }, "sha256": "5ec324fa8107bcbfef9faac7e0fb21b00f8a63e581920371c68a0074408fa14b", "simhash": "1:92e5322d75459414", "word_count": 4819 }, "last_updated": "2023-07-14T18:26:52.691366+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "WAYNE LEE THORNTON, Plaintiff-Appellant, v. BEN PAUL et al., Defendants. \u2014 (ILLINOIS FOUNDERS INSURANCE COMPANY, INC., Garnishee-Appellee.)" ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE MILLS\ndelivered the opinion of the court:\nThis case has been in the circuit court twice, once before in this tribunal, across the hall to the Illinois Supreme Court, and is now here before us again.\nRegrettably \u2014 it must go back once more.\nThe scenario arises from the traditional display of merriment associated with ringing out the old and ringing in the new on New Year\u2019s Eve and the early morning hours of New Year\u2019s Day. According to our plaintiff here, his enjoyment of the festivities surrounding the coming of 1973 was abruptly ended when he was struck by a wooden object wielded by Ben Paul, the proprietor of a spirit dispensary known as Ben\u2019s Den, Inc.\nDefendant Paul \u2014 the \u201cBen\u201d of \u201cBen\u2019s Den\u201d \u2014 was charged with aggravated battery as a result of the incident. On the day set for trial, a charge of battery was added, and he was found guilty of the new charge following a bench trial on stipulated facts. The aggravated battery charge was \u201cnolle prossed.\u201d\nOn August 7, 1973, Thornton filed a two-count complaint charging defendants Ben Paul and Ben\u2019s Den, Inc., with wilful and wanton misconduct, seeking $14,000 in compensatory and punitive damages.\nAt the time of the event in question, the defendants, Paul and Ben\u2019s Den, Inc., had a liability insurance policy with Illinois Founders Insurance Company. That policy provided that Illinois Founders will pay all sums which the insured shall become legally obligated to pay as damages for personal injuries caused by an occurrence arising out of the ownership, maintenance or use of the insured premises and that Illinois Founders will defend any such suit against the insured. The term \u201coccurrence\u201d was defined as \u201can accident, including continuous or repeated exposure to conditions, which result in bodily injury or property damage neither expected nor intended from the standpoint of the insured * *\nAlso appended to the policy was an endorsement which stated:\n\u201cEXCLUSION OF ASSAULT AND BATTERY It is agreed that the insurance does not apply to Bodily Injury or Property Damage arising out of assault and battery or out of any act or omission in connection with the prevention or suppression of such assault and battery.\u201d\nAfter investigating the incident, Illinois Founders determined that it was outside of the policy coverage and notified Paul of its denial of coverage. Paul then engaged the services of a personal attorney who filed an answer and an affirmative defense.\nFollowing discovery depositions, Thornton, with leave of the court, filed an amended complaint alleging that Paul \u201cnegligently\u201d struck him. The amended complaint sought $30,000 in damages. Paul\u2019s personal attorney requested Illinois Founders to defend against the amended complaint, and in a letter dated August 19, 1974, Illinois Founders refused.\nSometime between July 24, 1974, and March 16, 1975, Paul and Thornton entered into an agreement wherein Thornton agreed to settle his right to pursue Ben Paul or Ben\u2019s Den for any portion of a judgment which may be rendered, for the sum of $100. The agreement expressly provided that Thornton was free to pursue his suit to judgment and collect any judgment from Illinois Founders.\nOn March 17,1975, a default judgment was entered for $30,000 after Paul\u2019s attorney failed to either file a responsive pleading to the amended complaint or answer the call for trial. The trial court was never advised of the agreement.\nOn April 16,1975, Thornton filed an affidavit for garnishment against Iilinois Founders, and following a hearing, Illinois Founders was ordered to pay Thornton the amount of the judgment, plus costs. A notice of appeal was filed from that judgment. Illinois Founders then filed a section 72 petition to vacate the default which was denied. A second notice of appeal was filed. The appeals were consolidated in this court.\nOn August 8,1977, this court filed an opinion affirming the trial court. (Thornton v. Paul (1977), 51 Ill. App. 3d 337, 366 N.E.2d 1048.) The decision was appealed to the supreme court, which affirmed as to the section 72 petition but reversed and remanded the garnishment action. Thornton v. Paul (1978), 74 Ill. 2d 132, 384 N.E.2d 335.\nThe supreme court initially noted the general rule that an insurer\u2019s failure to defend estops it from later raising policy defenses for noncoverage in a subsequent action in garnishment by the insured or a judgment creditor. The court concluded, however, that \u201cbecause of the conflict of interests and the ethical problems that would have been presented if Illinois Founders would have undertaken the defense of the defendants, the insurer\u2019s failure to defend should not estop it from raising the defense of noncoverage in the garnishment action.\u201d (74 Ill. 2d 132, 155, 384 N.E.2d 335, 345.) The supreme court further determined that Illinois Founders was not collaterally estopped from asserting its defense due to the default judgment.\nFinally, the court examined the effect of Paul\u2019s battery conviction. After noting that a number of courts have held that a criminal conviction conclusively establishes the facts upon which it is based, the court decided to follow the majority position which permits the use of criminal convictions as prima facie evidence of the underlying offense. The court stated:\n\u201cThe court in the criminal case adjudicated the conduct of defendant Ben Paul to constitute battery. We noted above the holdings of the Oregon court in Casey, and the Pennsylvania court in Hurtt that proof of a criminal conviction is conclusive proof of the facts on which it is based. We think the preferred rule is that stated by the Appellate Court for the Second District in Smith v. Andrews (1964), 54 Ill. App. 2d 51, 203 N.E.2d 160, which held proof of a conviction to be admissible in a civil case as prima facie evidence. We are not concerned here with the effect of a guilty plea. This approach preserves the opportunity to rebut the factual basis of the conviction insofar as those facts are applicable to the civil proceeding. Also, it does not conclusively establish that there was no duty to defend as the Oregon court held in Casey. In our case, the evidence of the defendant Paul\u2019s conviction of battery should have been admitted in the garnishment proceeding as prima facie evidence that his striking of the plaintiff constituted a battery. (Emphasis ours.) (74 Ill. 2d 132, 151, 384 N.E.2d 335, 343.)\nThe court remanded the case to the trial court.\nOn February 27, 1979, a default was entered against Illinois Founders. On April 24, 1979, the court vacated the default on Illinois Founders\u2019 motion which asserted that its counsel had not received notice of the hearing. On the next day, Illinois Founders filed a \u201cDefense to Garnishment, Complaint and Summons.\u201d (It appears from our record that this was the first response to the garnishment affidavit filed by Founders.)\nThe garnishment hearing was held on May 1,1979. Thornton offered into evidence the insurance policy between Ben Paul and Illinois Founders, and asked the court to take judicial notice of the prior proceedings. The trial court admitted the policy and stated that admissions made in the prior proceedings would be admitted as rebuttable evidence. Thornton then rested.\nBen Paul was called as a witness for Illinois Founders. On the night of December 31, 1972, Wayne Thornton and four others were drinking in Ben\u2019s Den and became rowdy. He asked them to quiet down, and after the fourth warning he asked Thornton to leave. Thornton refused and said he was going to \u201cwhip\u201d Paul. Paul came around the bar with a stick, hoping it would coerce Thornton to leave. Thornton refused and a fight ensued, culminating with Paul hitting Thornton with the stick. Paul stated that he had hoped he didn\u2019t have to use the stick but when he did, he intended to hit Thornton. At the time of the incident, Paul was 5 feet 6*2 inches tall and weighed 170 pounds. Thornton was about 6 feet 2 inches tall and had a reputation as a good fighter. Paul was originally charged with aggravated battery but this was later changed to battery. Paul was ultimately convicted of the battery and paid a fine.\nOn cross-examination, Paul stated that all five of the men were taller than he and weighed approximately 230 pounds. They were rowdy in that they were scuffling, inciting fights, and throwing beer bottles and glasses.\nWayne Thornton was called under section 60. He stated that he arrived at Ben\u2019s Den at approximately 2 a.m. on January 1,1973. He and a few other friends were \u201cmessing around a little bit back at the pool table\u201d when Paul asked them to quiet down or leave. Thornton approached the bar and the man seated next to him started to fall off the stool, knocking off a bunch of beer bottles. Paul then told him, Thornton, to leave. Thornton refused to leave until his friends left. He thought Paul struck him with a pool cue. Illinois Founders then rested.\nThornton called a number of witnesses on rebuttal. Judge Luther Dearborn identified docket entries he made on January 17, 1973. They reflected that defendant Paul was found guilty of battery after the Assistant State\u2019s Attorney and his counsel related the facts of the incident by means of a stipulation. On the basis of the stipulated facts, the court found Paul guilty.\nLeon Zanoni stated that he represented Paul on the criminal charge. On January 17, 1973, he negotiated with the State\u2019s Attorney\u2019s office a stipulation of facts for the criminal case. This procedure was used so that a guilty plea could not be used as an admission in a civil suit and to obtain conviction of a misdemeanor rather than a felony.\nPatrick Dawson testified that he accompanied Thornton on the night in question. They had attended a party and Thornton had several drinks. In the several hours they were at Ben\u2019s Den, they started off with beers and moved to whiskey and water. Dawson was 6 feet tall and weighed 245 pounds. The others were 6 feet 1 inch, 230 pounds, 5 feet 5 inches tall, 180 pounds; and 5 feet 11 inches, 165 pounds. Paul had asked them to leave several times.\nOn cross-examination, Dawson stated that Thornton and Paul got into an argument and Paul picked up something which looked like the bottom of a pool cue. Paul then came around the bar and took a swing at them, hitting Thornton. Dawson stated that if he owned the business he would have wanted the group to get out but he didn\u2019t know if he would have used that much force.\nDuring arguments, counsel for Illinois Founders asserted first that the incident was not covered under the policy since it did not constitute an occurrence under the policy. It was also argued that the actions of Paul constituted a battery under the policy exclusion.\nOn June 18,1979, the trial court entered its first order. The trial court initially noted the supreme court\u2019s declaration that the conviction was admissible as prima facie evidence. After examining the facts surrounding the conviction, the trial court declared:\n\u201cthat the proceedings which resulted in Ben Paul\u2019s conviction of battery were essentially equivalent to a judgment of conviction upon a negotiated plea of guilty to a lesser included offense.\nt* # \u00bb\nThe mandate of the Illinois Supreme Court directs this court to consider only whether the defense of non-coverage that the defendant Paul\u2019s conduct constituted a battery, could be established. The cases seem to limit explanations concerning criminal convictions to the reasons why the defendant decided to plead guilty (or in this case, to stipulate to facts establishing guilt). The cases appear not to permit the defendant to offer an explanation in the nature of justification, self-defense or excuse. Since such explanations are impermissible, and the other defense of non-coverage that the Defendant Paul was engaged in acts \u2018in connection with the prevention or suppression of such assault and battery\u2019 is beyond the express terms of the mandate, the testimony of the plaintiff, the plaintiff\u2019s friends and the Defendant Paul relative to the plaintiff and his friends fighting and damaging property in Ben\u2019s Den and the defendant\u2019s attempt to abate such activities is inadmissible and ordered stricken.\nThe record in this garnishment hearing, purged of inadmissible testimony relative to justification and the activities of the defendant to suppress assault and battery, does establish an intentional striking of the plaintiff by the Defendant Paul and the injury of the plaintiff. Thus, even though the Defendant Paul\u2019s conduct constituted negligence, there is also sufficient evidence that it constituted the intentional tort of battery which is excluded from coverage under the policy.\u201d\nIn a subsequent order dated June 29, 1979, the trial court awarded Illinois Founders $3,169.53 as costs incurred in the supreme court on the prior appeal.\nThornton now appeals both orders. He claims that the trial court erred in sua sponte striking\u2019 evidence presented to rebut Illinois Founders\u2019 prima facie defense and that the award of costs by the trial court was unauthorized.\nWe agree with both contentions, and thus we reverse.\nThe supreme court declared that the conviction in this case was admissible as prima facie evidence. The court also stated that it was not concerned with the effect of the guilty plea. (74 Ill. 2d 132, 151, 384 N.E.2d 335, 343.) Implicit in this rationale is a determination that Paul\u2019s conviction did not result from a guilty plea. Thus, the trial court erred in striking the evidence.\nAdditionally, a conviction following a bench trial on stipulated facts is not the equivalent of a guilty plea. This is illustrated by this court\u2019s decision in People v. Fair (1975), 29 Ill. App. 3d 939, 332 N.E.2d 51. In Fair, the defendant was convicted of armed robbery following a bench trial. At trial, the defendant stipulated to the prosecution\u2019s evidence and presented no evidence of his own. On appeal, he argued that his conviction should be reversed since his stipulation to facts was tantamount to a plea of guilty, thus entitling him to admonitions under Supreme Court Rule 402. This court rejected the defendant\u2019s argument and affirmed. In so doing, we distinguished between cases where defendant stipulates to his guilt or that the evidence was sufficient to establish guilt, and situations where a judge determines guilt based upon stipulated facts. In the former case, it has been held that the stipulation was the equivalent to a plea of guilty requiring admonitions. (People v. Stepheny (1974), 56 Ill. 2d 237, 306 N.E.2d 872; People v. Smith (1974), 59 Ill. 2d 236, 319 N.E.2d 760.) Where, as here, the defendant merely stipulates to facts and the judge determines guilt, no admonitions are required.\nEven if we were to agree with the trial court that the conviction resulted from a guilty plea, our result would be the same. In its order, the trial court declared that \u201cIllinois courts have held that it was not erroneous for the trial court to refuse to admit testimony in explanation of a plea of guilty to battery by proving justification, self-defense, or excuse. Galvan v. Torres (1956), 8 Ill. App. 2d 227, 131 N.E.2d 367.\u201d A close examination of this portion of the Galvan decision reveals, however, that the court was specifically limiting that portion of its decision to the pleadings in that case. 8 Ill. App. 2d 227, 233, 131 N.E.2d 367.\nThe situation presented to this court is sufficiently different from the Galvan case to declare that decision inapplicable. In Galvan, the defendant to the criminal charge was also the defendant in the civil action. In the instant case, however, the plaintiff Thornton was not the criminal defendant. The effect of the trial court\u2019s ruling is to bind. Thornton to Paul\u2019s plea.\nIllinois Founders also argues that even if this court should decide that the evidence was erroneously stricken, we should still affirm. Illinois Founders first contends that the event did not constitute an \u201coccurrence\u201d under the policy. Additionally, it claims that plaintiff failed to produce sufficient evidence to establish either self-defense or justification.\nOn the first argument, Thornton asserts that Illinois Founders is making its claim for the first time on appeal and thus the question is not properly before this court. Our examination of the record reveals, however, that the same position was advanced by Illinois Founders\u2019 counsel in closing argument on the hearing following the supreme court\u2019s remand.\nThere is some question initially whether the trial court is authorized to entertain such an argument. As a general rule, the trial court is bound by the decision and the mandate of the appellate court. (Fiore v. City of Highland Park (1968), 93 Ill. App. 2d 24, 235 N.E.2d 23, cert. denied (1969), 393 U.S. 1084, 21 L. Ed. 2d 776, 89 S. Ct. 867.) Where the directions of the reviewing court are specific, a positive duty devolves on the trial court to which the cause is remanded to enter an order or decree in accordance with the directions contained in the mandate. (Stuart v. Continental Illinois National Bank & Trust Co. (1979), 75 Ill. 2d 22, 387 N.E.2d 312, cert. denied (1979),_U.S__, 62 L. Ed. 2d 56,100 S. Ct. 87.) Where, however, a court-of review does not determine the merits of the cause but merely reverses and remands without specific directions, the judgment of the court below is entirely abrogated, and the cause stands as if no trial had occurred. People ex rel. Borelli v. Sain (1959), 16 Ill. 2d 321, 157 N.E.2d 417.\nWe have carefully examined the supreme court\u2019s opinion and conclude that Illinois Founders was not precluded from claiming in the trial court that the event was not an occurrence under the policy. In the first garnishment hearing, the plaintiff took the position \u2014 and the trial court agreed \u2014 that Illinois Founders was precluded from raising any defenses of noncoverage due to its failure to defend. The supreme court basically reversed this finding without ruling on the merits (i.e., whether Illinois Founders could establish noncoverage). While it is clear that the only defense to noncoverage which the supreme court examined was the defense derived from the battery exclusion, the remand does not specifically direct the trial court to consider only whether Paul\u2019s act constituted a battery. Indeed, the supreme court\u2019s opinion almost uniformly remands to determine whether Illinois Founders could establish its defense of noncoverage. The use throughout the opinion of this broad generic term \u2014 defense of noncoverage \u2014 leads us to believe that Illinois Founders can raise any defense of noncoverage including one premised upon the interpretation of the term \u201coccurrence.\u201d\nHaving dealt with the preliminaries at some length, we now consider the marrow of Illinois Founders\u2019 claim. The basic argument is that even if the trial court incorrectly determined that Paul\u2019s conviction was based on a guilty plea, we should still affirm because the event was not an \u201coccurrence\u201d under the policy. Clearly, this is a question of interpretation of the contract. The trial court\u2019s order leaves little doubt that it did not consider this question.\nIn general, insurance policies must be construed and enforced as made by the parties. (Schewe v. Home Insurance Co. (1980), 80 Ill. App. 3d 829, 400 N.E.2d 501.) The fundamental inquiry is the intent of the parties to the contract. If no ambiguity appears, the policy is to be read according to the plain and ordinary meaning of its terms. (Dora Township v. Indiana Insurance Co. (1980), 78 Ill. 376, 400 N.E.2d 921.) In order to ascertain the intent of the parties, however, a court should not examine the policy in a vacuum but should look to the circumstances surrounding the issuance of the policy, such as the situation of the parties and the purpose for which the policy was obtained. Dora Township.\nThe initial inquiry is whether the contract is ambiguous. The policy in question covers losses sustained as a result of an occurrence on the insured premises. \u201cOccurrence\u201d is defined in the policy as \u201can accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured * * The word \u201caccident\u201d is clearly the operative word in the definition.\nIllinois Founders asserts here that since Paul intended to strike the plaintiff \u2014 even though justified \u2014 the act would not constitute an \u201coccurrence.\u201d If this is true, then any intentional or wilful act would not be covered by the policy. One thus wonders why there is a need for a battery exclusion since a battery necessarily involves an intentional act. Given the broad reading of \u201coccurrence\u201d which Illinois Founders now urges, the battery exclusion removes from coverage something which was never included.\nWe find that the terms of the policy are ambiguous. While there was a brief mention of this question at the prior hearing, no evidence was presented on this point and the trial court did not mention it in his order. Since we are remanding on the question of justification, the parties are free to present evidence on this question.\nIn a like manner, we cannot accept Illinois Founders\u2019 argument that plaintiff has failed to establish justification. The trial court specifically declined to consider this evidence. Our review of the testimony, however, leads us to believe that ample evidence was presented so that the trial court, in its function as a factfinder, could have found that Paul\u2019s use of force was either justified or in self-defense. The testimony indicates that Paul, who was not large in stature, was trying to maintain order in his establishment in the face of larger individuals who had diligently imbibed and were threatening to \u201cwhip\u201d him. We refuse to speculate as to the finding which the trial court would have made had he properly considered the evidence.\nThornton also claims that it was error for the trial court to award $3,169.53 to Illinois Founders as costs on appeal, since costs must be assessed in the court in which they are incurred. (People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194.) Both parties have apparently failed to discover that the question is controlled by statute. (Ill. Rev. Stat. 1977, ch. 33, par. 25.) The Nicholls case specifically states that this statute places the duty of assessing costs upon the clerk of the reviewing court. Thus, the trial court was not authorized to assess costs.\nHaving reached this determination, we need not decide plaintiffs final contention \u2014 that costs for the appeal bond are not properly taxed as costs.\nThe decision of the trial court is hereby reversed, and the cause is remanded for further proceedings consistent with the views expressed herein.\nReversed and remanded.\nWEBBER, J., concurs.", "type": "majority", "author": "Mr. PRESIDING JUSTICE MILLS" }, { "text": "Mr. JUSTICE GREEN,\nconcurring in part and dissenting in part:\nI agree with the majority\u2019s well-reasoned conclusions that (1) the trial court should not have stricken evidence rebutting Illinois Founders\u2019 prima facie battery defense, and (2) the question of whether the event in question constituted an \u201coccurrence\u201d within the meaning of the policy was also before the trial court on remand. I conclude, however, that the evidence, including that which was improperly stricken after the conclusion of the hearing, showed, as a matter of law, that the liability insurance policy did not cover the event. For this reason, I would affirm the order finding Illinois Founders not liable in garnishment.\nThe evidence showed conclusively that Ben Paul intentionally hit plaintiff with the hard wooden part of an object that appeared to be a cue stick. The majority does not dispute that this act would have constituted a battery unless justified. The situations which would have justified the conduct are set forth in article 7 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, pars. 7 \u2014 1 to 7 \u2014 14). If Paul committed a battery, the supreme court\u2019s decision in this case would have required the trial court to find the exclusionary clause of the policy to prevail. If, on the other hand, Paul\u2019s conduct was justified, he did not commit a tort. He could not have been held to be merely negligent in his appraisal of the situation prior to his striking plaintiff, for the reasonableness of that appraisal determines whether this conduct was justified under article 7. Thus, in determining whether the policy would cover the situation if Paul struck plaintiff without committing a battery, we are required to determine whether the policy covered an event in which no tort was committed by the insureds.\nThe policy purported to give coverage for liability arising from an \u201coccurrence\u201d which was defined as \u201can accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured \u00b0 (Emphasis added.) The plain meaning of the definition would seem to be such that an intentional striking of another by an insured or his servant would not be covered. However, a number of cases have held that an assault, in the broad sense of assault and battery being one, is an \u201caccident\u201d within the meaning of liability policies. In such cases, the question of whether the event is to be viewed from the standpoint of the insured or the victim is deemed to be crucial. (Annot., 72 A.L.R.3d 1090, 1100 (1976).) Here, if the event is viewed from the standpoint of the insured, Paul, as the policy directs, his conduct was intentional and not an \u201caccident.\u201d\nThe theory that the event may be examined from the standpoint of the injured party started in this State with the decision in E. J. Albrecht Co. v. Fidelity & Casualty Co. (1937), 289 Ill. App. 508, 7 N.E.2d 626. There, servants of the insured had intentionally and without sufficient provocation shot a third person. The liability insurance policy in issue covered accidents, and there was no exclusionary clause for battery. The court held that as the shooting was without provocation, it would be viewed from the standpoint of the injured party, and from his standpoint it was an accident. .The case was cited with approval in Hawthorne v. Frost (1952), 348 Ill. App. 279,108 N.E. 816, where an unprovoked attack by a cab driver against a passenger was deemed to be accidental, and in Scott v. Instant Parking, Inc. (1969), 105 Ill. App. 2d 133, 245 N.E.2d 124, where willful and wanton conduct of an elevator operator was held to be an accident invoking coverage.\nThe rationale of E. J. Albrecht Co., its progeny and authority from other jurisdictions, shows a policy of construing liability policies in such a way as to give protection to injured parties innocent of provocation. However, the supreme court has held that the battery exclusion is valid and excludes coverage if a battery was committed. If a battery was not committed, the justification for Paul\u2019s acts must have arisen from provocation by plaintiff, the injured party. Thus, the rationale of F. J. Albrecht Co. would not be applicable, and the question of intent would be viewed from the standpoint of the insured even without the direction to do so in the policy\u2019s definition of the word \u201caccident.\u201d Regardless of whether or not Paul committed a battery, I find no basis for coverage under the evidence here.\nThe theory that the question of intent be determined from the standpoint of an injured party innocent of provocation is likely the reason for the insurer placing a battery exclusionary clause in the policy in addition to defining the term \u201caccident\u201d in such a way that it did not include an event resulting from intentional conduct. Many batteries are unprovoked, and the insurer was likely concerned that they would be deemed accidents even under policies where, as here, the question of intent was directed to be determined from \u201cthe standpoint of the insured.\u201d\nAs the question of whether the event was an \u201coccurrence\u201d constituting an \u201caccident\u201d was before the trial court on remand, the parties had an opportunity to present any admissible evidence on the question. Under the record here, I consider the interpretation of the policy to be a question of law as it was in Dora Township v. Indiana Insurance Co. (1980), 78 Ill. 2d 376, 400 N.E.2d 921. Thus we are not required to remand the case to the trial court, although it did not pass on this issue. I would avoid further proceedings there by not doing so.\nI agree that the order taxing the premium for Illinois Founders\u2019 supersedeas bond as costs should be reversed.\nAccordingly, I would affirm the order on the garnishment proceeding and reverse the order taxing costs, all without remandment.", "type": "concurrence", "author": "Mr. JUSTICE GREEN," } ], "attorneys": [ "James Walker, Ltd., of Bloomington, for appellant.", "Howard W. Small, of Thomas, Mamer, Haughey & Miller, of Champaign, for appellee." ], "corrections": "", "head_matter": "WAYNE LEE THORNTON, Plaintiff-Appellant, v. BEN PAUL et al., Defendants. \u2014 (ILLINOIS FOUNDERS INSURANCE COMPANY, INC., Garnishee-Appellee.)\nFourth District\nNo. 15875\nOpinion filed June 2, 1980.\nGREEN, J., concurring in part and dissenting in part.\nJames Walker, Ltd., of Bloomington, for appellant.\nHoward W. Small, of Thomas, Mamer, Haughey & Miller, of Champaign, for appellee." }, "file_name": "0121-01", "first_page_order": 143, "last_page_order": 155 }