Appeal from the Circuit Court for the 18th Judicial Circuit,
DuPage County; the Hon. PHILIP F. LOCKE, Judge, presiding.
Reversed and remanded with directions.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.
This was a suit to recover benefits under an accident policy issued by the defendant, New York Life Insurance Company. The jury returned verdicts finding that the plaintiff, LeRoy A. Carlson, was entitled to weekly benefits of $75 from October 30, 1958, to the date of trial, totaling $24,300, and that said weekly benefits should continue so "long as said plaintiff lives and is disabled." Judgments were entered on the verdicts, and the defendant prosecuted this appeal.
The insurance policy on which this suit was based, was issued to the plaintiff on December 13, 1955, and provided benefits only for specified losses caused by accidental bodily injury. The insuring clause insured "against specified losses resulting directly, and independently of all other causes, from accidental bodily injury . . ., subject to the terms and conditions of this Policy." Under the "Exceptions" of the policy, it was provided that the insurance shall not cover any loss caused or contributed to by any one or more of the following: "(c) illness, disease, or any bacterial infection other than that occurring in consequence of accidental injury on the exterior of the body, . . . ."
Elsewhere, under the heading, "Time Limit on Certain Defenses," the policy provided:
"(2) No claim for loss incurred or disability (as defined in this Policy) commencing after two years from the date of issue of this Policy shall be reduced or denied on the ground that a named condition not specifically excluded from the coverage had existed prior to the effective date of coverage of this Policy."
There is little dispute as to the relevant facts. On October 25, 1958, the plaintiff was adding a room to his home, and while sanding a door the sandpaper on the electric sander ripped, causing foreign matter to be propelled into his face and eyes. Plaintiff testified that dust and splinters flew into his face, and that with two fingers, he immediately pulled a sliver out of his left eye. His eyes were inflamed from the accident, and from that date until October 30, 1958 when he saw a doctor, he applied various medications to his eyes.
The doctor, whom he saw a specialist in ophthalmology hospitalized plaintiff and treated him from October 30 to December 16, 1958. The doctor testified that he found no evidence of a break, puncture or laceration in the plaintiff's left eye; and that as of December 16, 1958, there was nothing to prevent the plaintiff from performing his duties as an insurance salesman.
Two other ophthalmologists who were largely in accord testified that the plaintiff was suffering from lipoidal dystrophy, which either may or may not be the result of a trauma to the cornea. Neither of these doctors found any evidence of a scar from an injury to plaintiff's left eye.
Plaintiff testified that from the date of the injury to the date of the trial, he consulted with and was examined by approximately 39 doctors; and that he visited 7 medical and psychiatric institutions. The majority of the doctors consulted were ophthalmologists; however, some were neurologists or psychiatrists. The plaintiff also testified to a series of pains and physical maladies following the injury to his eyes: sharp shooting pains in his left eye over an extended period of time; the discharge of two slivers and pus from his left eye in June of 1959; an impression of spasm, ripping or tearing apart of his head; sensations that his right eardrum was bursting, that the whole right side of his head was swollen, and that a clot of blood passed through the cavernous sinus of his head; and constant pain in the middle of his head which increased with either physical or mental activity.
He further testified that it was his recollection that various of the doctors who examined him from time to time advised him that he was losing the skin out of his eyes; that he was in shock; that he had a gross infection in his eye; that he had an infection of his middle ear; and that he had an infection of his whole head.
Three psychiatrists testified at the trial. Each stated that the plaintiff was suffering from schizophrenia, which resulted in total disability to carry on gainful employment. They concurred in the view that the plaintiff was suffering from somatic delusions; and that he was schizophrenic prior to the incident of October 25, 1958. However, they differed in their views as to when the plaintiff may have been a latent or an active schizophrenic, and as to whether the incident of October 25, 1958, may have been a precipitating factor causing a latent schizophrenia to become active.
Plaintiff's medical witness testified that prior to October 25, 1958, plaintiff's schizophrenia was latent. In answer to a hypothetical question, he stated that he was of the opinion that the incident on October 25, 1958, was the proximate cause of the activation of the schizophrenia. Defendant's medical witnesses testified that it was difficult to determine when active schizophrenia has its inception, but that plaintiff's falling sales records prior to the incident, as well as his belief that he had a splinter in his left eye, could well have been a symptom of such illness. In answer to hypothetical questions, neither of these witnesses believed the incident of October 25, 1958, could have been a precipitating factor in activating latent schizophrenia. The psychiatrists all agreed that the cause of schizophrenia is unknown; that the plaintiff had schizophrenia either latent or active prior to October 25, 1958, and that schizophrenia is an illness or disease.
The defendant contends that the trial court erred in refusing to direct verdicts for it at the close of all the evidence, or in refusing to grant it a judgment notwithstanding the verdicts, because as a matter of law the plaintiff's disability did not come within the coverage of the policy. In the alternative, the defendant contends it is entitled to a new trial because of errors in evidentiary rulings; in instructing the jury; and because the verdicts were contrary to the manifest weight of the evidence.
In resolving defendant's contention that the court erred in refusing to direct a verdict or to grant a judgment notwithstanding the verdict, we must view the evidence with its intendments most favorable to the plaintiff. Watts v. Bacon & Van Buskirk Glass Co., Inc., 18 Ill.2d 226, 229, 236, 163 N.E.2d 425 (1960); Tucker v. New York, C. & St. L.R. Co., 12 Ill.2d 532, 534, 147 N.E.2d 376 (1958). We must, at this posture of the case, accept as true that plaintiff's schizophrenia was latent prior to October 25, 1958, and became active as a result of that incident.
The question of whether plaintiff's disability is covered by the policy depends on whether it is a loss as defined in the insuring clause as "resulting directly, and independently of all other causes, from accidental bodily injury," or whether it is a loss "caused or contributed to by . . . illness, disease, or bacterial infection other than that occurring in consequence of accidental injury on the exterior of the body" as specified in the "Exemptions" paragraph.
It is the defendant's position that there is no liability under the policy unless the accidental injury is the sole and independent cause of the resulting disability; and that if the loss is caused in part by the pre-existing illness the latent schizophrenia there can be no recovery. It must be conceded that if read literally the policy seems to provide as the defendant urges. Further, there is authority, including the decision of this court in Welte v. Metropolitan Life Ins. Co., 305 Ill. App. 120, 27 N.E.2d 63 (2nd Dist 1940), to support defendant's contention. Under this rationale, if a pre-existing illness and an accidental injury combine to cause a resulting disability and loss, the insurer is not liable under the policy. Also see: Schroeder v. Police & Firemen's Ins. Ass'n, 300 Ill. App. 375, 382, 21 N.E.2d 16 (3rd Dist 1939); Ebbert v. Metropolitan Life Ins. Co., 289 Ill. App. 342, 16 N.E.2d 749 (1st Dist 1937).
The plaintiff argues that under this policy the fact that the disability is the result of the combined effect of an accidental injury and a pre-existing disease, does not necessarily preclude recovery; and that under such circumstances, the right to recover is dependent upon whether the accidental injury was the "proximate cause" of the resulting loss or disability. Kater v. United Ins. Co. of America, 25 Ill. App.2d 22, 30, 165 N.E.2d 74 (3rd Dist 1960); Rebenstorf v. Metropolitan Life Ins. Co., 299 Ill. App. 71, 84, 19 N.E.2d 420 (1st Dist 1939); 29A Am Jur (Insurance) secs 1134 and 1162, pp 288, 289, 307, 308; 22 ILP (Insurance), sec 383, pp 422-424.
In Rebenstorf v. Metropolitan Life Ins. Co., supra, the court, on pages 84 and 85, in quoting from Scanlan v. Metropolitan Life Ins. Co., 93 F.2d 942, stated:
"One may recover on an accident policy such as here in issue although the insured suffers from bodily infirmities. If the accident brought about conditions from which death resulted, the fact that the insured was ill, aged or infirm, or had bodily or mental infirmities, would not bar recovery provided the accident excited the bodily infirmity into activity and death resulted. If the infirmity alone would not have caused death, it cannot be said to have caused death when the immediate result was occasioned by an infirmity which became active only because of the accident. The infirmity may have made the insured less able to resist, but if the accident caused the condition which in turn affected the weak spot which did not resist as well as a healthy body, the cause is nevertheless the accident, and recovery cannot be avoided or evaded. (Citations.)"
We concur in this pronouncement. If the loss must be attributed in every case to the accidental injury solely, exclusively and totally independent of any other factor, then there would be a very rare incidence of coverage under an accident policy. As stated by Mr. Justice Cardozo in Silverstein v. Metropolitan Life Ins. Co., ...