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Sommers v. American Economy Ins. Co.

NOVEMBER 22, 1972.

EDNA K. SOMMERS, PLAINTIFF-APPELLANT,

v.

AMERICAN ECONOMY INSURANCE COMPANY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of McHenry County; the Hon. WILLIAM CARROLL, Judge, presiding.

MR. JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:

The plaintiff, Edna K. Sommers, appeals from a directed verdict entered in favor of the defendant, American Economy Insurance Company.

Plaintiff filed suit against defendant alleging that her husband, Frank C. Sommers, Sr., was insured by the defendant; that the policy provided indemnification for death resulting directly from an automobile accident; that on February 24, 1967, Mr. Sommers was involved in an automobile accident which resulted in his death; that according to the provisions of the policy, indemnity for the death was payable to the plaintiff; that after proper notice and demand the defendant refused to pay.

The case-in-chief consisted of evidence that Mr. Sommers suffered a heart attack in July, 1966; that on February 24, 1967, he was driving his auto upon the driveway of his place of employment; that the driveway was covered with ice and snow; that the car moved sideways and struck a snowbank; that the damage was "very, very minute"; that when first observed, Mr. Sommers appeared to be short of breath, was grabbing at his chest, then fell against the steering wheel, and that he died shortly thereafter.

Dr. John Paul, the physician who treated the deceased for his heart condition, testified after being asked to assume certain hypothetical facts, and the following dialogue occurred:

"Q. Doctor, do you have an opinion, within a reasonable degree of medical certainty, as to the cause of death of such a person?

A. Of course, I did not see this man die.

Q. Yes, Doctor. But medical certainty — within a reasonable degree of medical certainty do you have an opinion as to what this man died from?

The Court: The question is do you or do you not know; is that right?

(Plaintiff's attorney): Yes, your Honor.

The Witness: Well, it would certainly be a guess.

(By plaintiff's attorney): Do you have an opinion?

A. Yes.

Q. What is your opinion, ...


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