Appeal from the Circuit Court of St. Clair County, Twentieth
Judicial Circuit; the Hon. JOSEPH E. FLEMING, Judge, presiding.
Judgment affirmed except as to attorney fees; reversed and
remanded as to attorney fees, with instructions to allow only
reasonable attorney fees for preparing and presenting motion for
new trial in the original suit.
This is an action for declaratory judgment on an insurance policy seeking to compel appellant Insurance Company to satisfy a judgment for personal injuries entered against appellee Convalescent Center in favor of plaintiffs, Andrew Scott Keepes, a minor, and Raymond Keepes. On motion of the Convalescent Center for summary judgment, the trial court entered judgment against the Insurance Company from which this appeal is taken.
On March 21, 1965, Andrew Scott Keepes, being then about 18 months old, was badly burned by coming into contact with a hot radiator. This infant had been mentally and physically retarded since his birth and had been living at the Convalescent Center for about four months prior to this occurrence.
The insurance policy had an endorsement labeled "Exclusion of Malpractice and Professional Service" which provided: "the policy does not apply to injury, sickness, disease, death or destruction due to
"1. The rendering or failure to render
"(a) medical, surgical, dental, x-ray or nursing service or treatment, or the furnishing of food or beverages in connection therewith,
"(b) any service or treatment conducive to health or of a professional nature."
The principal point in dispute is whether or not this endorsement excludes coverage for this accident.
Plaintiff's complaint in the original suit charged the Doctors Convalescent Center with the following acts of negligence:
"a) The defendant failed and omitted to exercise any supervision and control over said plaintiff when the defendant well knew the plaintiff, because of his age and disability, was totally unable to care for himself and to appreciate the dangers attendant upon coming in contact with a radiator.
"b) The defendant placed said child in a room where the danger of coming into contact with a hot radiator was well known to it, and because of plaintiff's physical and mental handicap could not be appreciated by him.
"c) The defendant well knew that because of plaintiff's physical and mental handicap constant care and attention of him was required and it failed to provide the same.
"d) After discovering the burns described in paragraph 6 above, the defendant permitted said child to remain in said premises unattended until the following day before giving the burns any medical care or attention, and thereby said ...