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Simon v. Lumbermens Mutual Casualty Co.

OPINION FILED FEBRUARY 9, 1977.

DOROTHY O. SIMON, PLAINTIFF-APPELLANT,

v.

LUMBERMENS MUTUAL CASUALTY COMPANY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES D. CROSSON, Judge, presiding.

MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:

The plaintiff, Dorothy O. Simon, is the widow of George Simon, the named insured. She seeks to recover on two policies of insurance issued by the defendant Lumbermens Mutual Casualty Company. The "Travel Accident Policy" upon which the plaintiff seeks recovery provides insurance against a specified loss resulting from "bodily injury caused solely by an accident and resulting directly and independently of all other causes * * * while driving or riding in * * * a private passenger automobile * * *."

The "medical payments" coverage of the automobile policy upon which the plaintiff seeks to recover provides for the payment of necessary medical and funeral services for a named insured who "sustains bodily injury, sickness or disease, including death * * * caused by accident * * * while occupying the owned automobile * * *."

Three witnesses testified at the jury trial: The plaintiff, Dorothy O. Simon, Mr. Joseph Shulruff, and Dr. Henry B. Goldt.

On date of decedent's death, November 29, 1970, the decedent who had been under doctor's care for 1 1/2 years for high blood pressure but was apparently in good general health, attended a tombstone dedication ceremony for a deceased relative with his wife and other friends and relatives. The decedent intended to leave for a business trip directly from the cemetery. After the dedication, the decedent walked plaintiff to the car of a nephew who was to take her home. He kissed the plaintiff goodbye and proceeded to his car which was second in a single file of cars which was preparing to leave the dedication site. The car in front of the decedent was being driven by Mr. Siegel who was deceased at time of the trial. Behind the decedent was a car driven by Mr. Joseph Shulruff, a relative of the plaintiff. Shulruff testified that he noticed nothing unusual about the decedent that day; that around noon, after the dedication, there were several cars lined up single file on the narrow road; these cars remained motionless for three to five minutes during which time he could see decedent sitting alone in his car with the motor running and the brake light on. As he looked up again he saw the decedent's car "take off" and hit the rear end of Siegel's car pushing that car about fifteen feet ahead into an archway on the cemetery road. Shulruff testified that he ran to decedent's car, opened the driver's door and found the decedent "slumped" to the right. He turned off the engine and helped decedent to a sitting position. He testified the decedent was "gasping for air," "gagging and his eyes were bulging * * * sort of rolling." He described the decedent's color as "yellowish." He noticed no blood or mark of injury on the decedent. Shulruff went to call an ambulance while an uncle aided the decedent. The decedent's car sustained only minimal damage. When the ambulance arrived the decedent was given oxygen and transported to Loyola Hospital.

The plaintiff testified that she and the decedent had been married for 28 years at the time of the occurrence; that she was familiar with his general health and noticed nothing unusual about his appearance or health on the day of the incident. He seemed in good spirits. The decedent had never lost any time from work during the prior two years as a result of sickness. The plaintiff testified that the decedent had been under the care of Dr. Henry B. Goldt for about a year and a half prior to his death and was being treated and taking prescribed medication for high blood pressure. The decedent who had seen Dr. Goldt two days prior to his death had indicated to the plaintiff after his visit to the doctor that his health was "A-Okay." He was happy because they had a "nice long vacation coming up." The plaintiff had left the cemetery before the incident occurred. She later was called to Loyola University Hospital where she was notified of her husband's death. She had no knowledge of any physical injury to the body.

Dr. Henry B. Goldt testified by way of an evidence deposition taken September 29, 1972, two years after the accident and 2 1/2 years before the trial. He stated that he had treated the decedent for high blood pressure from July 29, 1969, until November 27, 1970. The last time he saw the decedent, two days before the incident, he found the decedent to be "in pretty good balance, medically speaking," and the decedent had no subjective complaints and "was feeling good."

On November 29, 1970, Dr. Goldt, received a telephone call about 1:30 p.m., from a police officer or relative who told him that decedent had expired about an hour before. He was asked to sign the death certificate and did so later that day at his home indicating the cause of death as acute coronary thrombosis. He never viewed the body.

Dr. Goldt was given a hypothetical situation which restated the facts of the instant case in some detail. He was then asked:

"Q. Now, Doctor, assuming the facts that I have related to you to be true and based upon those facts and based further upon the care and treatment, diagnosis and examinations you have made of Mr. Simon, do you have an opinion based upon a reasonable degree of medical and scientific certainty as to the cause of the condition of the acute coronary thrombosis?

A. Well, my opinion is corroborated by the fact I signed the death certificate as an acute coronary thrombosis with a secondary diagnosis of pre-existing hypertensive heart disease and therefore as a logical opinion sudden death brought on by the trauma of the accident could have caused acute coronary thrombosis.

Q. Then your opinion is that the —

A. It caused his death.

Q. What caused the coronary?

A. Well, the coronary could have been caused ...


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