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Kater v. United Ins. Co. of America

FEBRUARY 18, 1960.




Appeal from the Circuit Court of McLean county; the Hon. WILLIAM C. RADLIFF, Judge, presiding. Affirmed.


This is an action to recover benefits under an accident and sickness policy issued by defendant company (then the United Insurance Company) to Louis Kater, plaintiff's incompetent, who will be referred to herein as plaintiff.

The policy was dated July 25, 1952, and insured Louis Kater for losses resulting directly and independently of all other causes from accidental bodily injury and from sickness originating more than 20 days after the policy date. The pertinent portions of the policy are as follows:

"(Insuring Clause) United Insurance Company does hereby insure the person named in Policy Schedule (hereinafter called the Insured) subject to the terms, provisions and limitations of this policy (1) against loss of life, limb, sight or time resulting directly and independently of all other causes from accidental bodily injury, hereinafter called `Such Injury' . . . and (2) against loss of time commencing while this Policy is in force from sickness . . ."

"Part Four — Total Disability Benefits for Life-Accident. If `such injury' does not result in any of the specific losses . . . but within 20 days from the date of accident causes continuous total loss of time and total disability which prevents the insured from performing each and every duty pertaining to his occupation and requires regular and personal attendance of a licensed physician . . . the Company will pay at the rate of monthly benefit for one day or more for the period that the insured is so disabled, but not exceeding twelve consecutive months. If, after the payment of benefits for twelve consecutive months as aforesaid `such injury' shall continue to cause continuous total loss of time and total disability and requires regular and personal attendance by a licensed physician — the Company will pay at the rate of the Monthly Benefit . . . so long as the insured lives and is so disabled." Appearing on the face of the policy in red print is the following endorsement:

"The Company does not assume liability under any section of this Policy for or on account of loss by any disorder of the heart or circulatory system."

The complaint states that suit is brought pursuant to the Declaratory Judgment Section of the Statute, that on February 5, 1958, while the policy was in full force and effect, the insured received a laceration of his hand and as a direct and proximate result of such traumatic injury and medical care thereby necessitated, he suffered a cerebral hemorrhage which caused his total disability; that he will be disabled for the rest of his life; and that under Part IV of the policy, plaintiff is entitled to $300 per month for life. In its answer, in addition to denying the complaint allegations, defendant pleaded a number of affirmative defenses which in substance are that the injury to insured's hand did not cause the cerebral hemorrhage; that his total and continuous disability resulted from other causes occurring more than 20 days after the accident; that insured had suffered from angina pectoris in 1946; and that all disorders of the heart and circulatory system were excluded by an endorsement on the policy. Plaintiff filed its reply to these defenses admitting the angina pectoris but denying all other allegations thereof.

The cause was tried before the court and a judgment was entered in favor of plaintiff for $4225. The court also entered a declaratory judgment that the insured was totally disabled and entitled to the sum of $300 per month beginning February 5, 1959, and each month thereafter as long as said insured lives and is disabled. From such judgment defendant has appealed.

The grounds upon which reversal is sought are that loss occasioned by a cerebral hemorrhage is expressly excluded by the policy; that plaintiff failed to prove that the cerebral hemorrhage resulted directly and independently of all other causes from accidental injury; that the cerebral hemorrhage did not occur within 20 days after insured's hand injury and consequently the proof fails to show proximate cause within the policy terms and that the judgment is manifestly against the weight of the evidence.

The evidence shows that on February 5, 1958, while the plaintiff was deep-sea fishing at Marathon, Florida, he fell against a coffee can used for holding bait and that as a result of such fall he sustained a cut on the palm side of his right hand between the fourth and little finger. Immediately following the accident, plaintiff was taken to the office of Dr. Lloyd Damsey who administered a shot of tetanus antitoxin and closed the wound, six stitches being required in the operation. At that time the patient's blood pressure was not taken. On February 7 and again on February 9, 1958, Dr. Damsey treated the wound for a local infection which had developed and gave plaintiff an antibiotic. There is evidence that two days after the accident the plaintiff began to lose the use of his right arm and was unable to dress or shave himself and that on February 8, 1958, his right leg was also affected. On February 10, 1958, plaintiff with his wife and daughter, with the daughter driving, started to travel by automobile to their home in Bloomington, Illinois. On February 11, 1958, the party stopped at Perry, Florida, where the stitches were removed from plaintiff's hand. When he arrived at Tallahassee, Florida, on the evening of the same day, he was unable to walk and was taken to a hospital. The following morning he was examined by Dr. I. Barnett Harrison, an internist whose impression was that plaintiff had suffered a small cerebral thrombosis resulting in right-sided weakness from which the Doctor thought there was a good chance of recovery. On February 16, 1958, plaintiff's condition was improved sufficiently to permit his leaving the hospital. On being discharged he was driven by car to Mobile, Alabama, from where he travelled by train to Danville, Illinois. From Danville where he arrived on February 19, he was taken by ambulance to Brokaw Hospital in Bloomington where he remained until February 25, when he was released and returned to his home. While in Brokaw Hospital he was attended by Dr. Raymond E. Baxter, whose diagnosis was cerebral thrombosis with paresis of right arm and leg. On the trial Dr. Baxter testified that he had treated plaintiff since 1946 for arteriosclerotic heart disease and hypertension; that the patient had an attack of angina in 1946 of three months duration but had suffered no reoccurrence of such ailment; that he had seen plaintiff every month or two for a period of two years and thereafter saw him two or three times a year; that on each of those occasions he had taken plaintiff's blood pressure which was around 140 to 150 except on one occasion it reached 180; and that since 1946 plaintiff's heart condition had remained stable and his general condition was good. When plaintiff left Brokaw Hospital on February 25, he could walk with assistance. During March, 1958, Dr. Baxter saw him three times. On April 1, 1958, plaintiff was returned to Brokaw Hospital and at that time had developed a cerebral hemorrhage causing him to have right hemiplegia and aphasia. On April 21, 1958, plaintiff was taken to St. Joseph's Hospital for physiotherapy treatments. He was released from the latter institution on July 25, 1958, and since that time has remained at home.

At the time of the trial plaintiff's right side remained completely paralyzed and he still had aphasia. Dr. Baxter testified that plaintiff's condition is permanent. The evidence is that at the time of his injury plaintiff was 58 years of age; that from 1946 to 1958 he was in charge of and worked at his automotive electrical service and parts business in Bloomington; that his work included travelling as a salesman; and that during such period he was suffering from no disability; that his heart condition had stabilized; that although having a mild hypertensive condition his blood pressure was kept under control by the use of drugs; that the drug prescribed was Raudixin, commonly used for moderate vascular changes; and that when plaintiff left for Florida he was suffering from a perianal infection for which he was given codeine and penicillin.

Defendant insists that plaintiff's loss was occasioned by a cerebral hemorrhage which constitutes a disorder of the circulatory system and that such disorder, regardless of whether it be traumatically caused is expressly excluded by the restrictive endorsement on the policy.

In considering such contention it is to be borne in mind that plaintiff's claim is brought under the accident provisions of the policy and is for loss resulting from accidental bodily injury. Recovery is not sought for a loss resulting from a disease or infirmity existing prior to the accident or which was contracted subsequent to and independent of the accident. Accordingly the decisive question is not the disorder from which plaintiff now suffers but whether the accidental injury to his hand was the direct and proximate cause of the paralysis and aphasia which has rendered him totally and permanently disabled. The general proposition of law that where a diseased condition resulting in disability is caused by an accident, the accident alone is considered the cause of the disability is well established. In 29 Am. Jur., Insurance, Page 751, it is stated as follows:

". . . if an accident results in disease or some other physical condition not directly within the coverage of an insurance policy, and death or disability follows, the accident is still the proximate cause of such death or disability and recovery may be had upon the policy. The result is consequently within the coverage of an accident policy insuring against bodily injuries effected through external, violent, and accidental means if the disease or ...

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