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Graser v. Mutual of Omaha Ins. Co.

APRIL 19, 1966.

GILBERT GRASER, FATHER AND NEXT FRIEND OF JEFFERY GRASER, A MINOR, PLAINTIFF-APPELLEE,

v.

MUTUAL OF OMAHA INSURANCE COMPANY, A CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. NICHOLAS J. BUA, Judge, presiding. Judgment reversed and cause remanded, with directions to enter judgment for defendant and against plaintiff.

MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.

This is an appeal from a summary judgment entered in favor of plaintiff and against defendant in an action brought to recover benefits under a school accident expense insurance policy.

On October 16, 1962, eleven-year-old Jeffery Graser, a 6th grade student at Orchard Place School in Des Plaines, fell out of a tree located in an area a short distance west of the school and fractured his arm. His father filed a claim for benefits under an accident expense policy defendant had issued to Des Plaines School District #62 (which encompasses the Orchard Place School) and which insured him against medical expenses resulting from accidental bodily injuries sustained while:

"Traveling directly to or from the Insured's home premises and the school for regular school sessions, within one hour before school begins and one hour after the Insured is dismissed. . . ."

The claim was denied and suit was brought in the Circuit Court of Cook County.

The parties ultimately entered into the following stipulation of fact:

1. On October 16, 1962, Defendant had issued its Accident Expense Policy to Des Plaines School District #62, a true and correct copy of which policy is attached hereto as Exhibit "A" and made a part hereof.

2. On said date, Plaintiff's son, Jeffery Graser, age 11, was a 6th grade student at Orchard Place School at 2727 Maple Avenue, Des Plaines, and was one of the persons insured under said policy.

3. On said date, Plaintiff's son fell from a tree and sustained accidental bodily injuries.

4. On said date, the home of Plaintiff and his son was located at 2891 East Craig Drive, Des Plaines.

5. The attached map truly and correctly portrays the location of the said Orchard Place School (#1), the place of the said accident (#2) and Plaintiff's residence (#3).

6. On said date, Plaintiff's son was dismissed from school at approximately 3:30 p.m., visited with a friend named Steven Householder who was stationed as a crossing guard at the intersection of Pratt and Scott Streets, then in the company of another friend named Larry Verrang, walked to the said tree and fell as he was attempting to climb it. The accident occurred at approximately 4:25 p.m. If called as a witness here, Jeffery Graser would testify that he customarily walked home from school via the following route: Maple to Pratt to Railroad Avenue to Central to Nimitz Drive to Craig Drive.

7. The policy attached as Exhibit "A" provides, in part, that said Jeffery Graser is insured while:

"(3) Traveling directly to or from the Insured's home premises and the school for regular school sessions, within one hour before school begins and one hour after the insured is dismissed or the required ...


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