Carlson v. New York Life Insurance , 76 Ill. App. 2d 187 ( 1966 )

Supplement to Opinion After Allowance of Petition for Rehearing

We granted the defendant a rehearing so that both parties might fully set forth their positions on our interpretation of the insurance contract with reference to the causative factor of plaintiff’s injury. Both parties have presented able and persuasive arguments relative to the interpretation which should be given the clause which insured the defendant “against specified losses resulting directly, and independently of all other causes, from accidental bodily injury”; and the exclusionary clause which provided that the policy should not cover any 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.”

The defendant in its petition urges that we should have held that the trial court erred in failing to direct a verdict or grant a judgment notwithstanding the verdict in defendant’s favor; and that we have done violence to the clear and unequivocal language of the contract and have erroneously adopted and applied a tort concept to contract law.

In reevaluating the insurance contract, in the light of its purpose and language, we feel we must adhere to the view expressed in our original opinion. An accidental injury must necessarily act on the bodies of persons in varied states of health and well or ill-being. The insured’s particular condition of well or ill-being may aggravate or lessen the resulting disability or loss; or such existing condition may be the precipitating and principal cause of the resulting disability which is merely aggravated by the accidental injury.

As stated in the original opinion, if the policy is to be construed in such manner that in order to recover, the disability must result from an accidental injury solely, exclusively and totally independent of any other factor, there would be only a rare incident of coverage. In view of the infinite interplay of causes, we do not believe that it is scientifically or philosophically possible to isolate any single cause as operative at any time or place to the exclusion of all others. Where there is a preexisting illness or disease and an accidental injury and a loss or disability, as in the case at bar, we hold the pivotal issue to be whether the accidental injury was the proximate cause of the resulting loss, and we do not believe that the strict interpretation of the policy urged by the defendant would be within the reasonable expectation and purpose of the ordinary man when making an ordinary contract. In construing this policy, we adhere to the concept that the law should enforce reasonable expectations arising out of conduct, relations and situations.

Under analogous circumstances — where heart attacks occurred during the working hours, of employees and claims for compensation were made — the Illinois Supreme Court was called upon to construe the Workmen’s Compensation Act (Ill Rev Stats 1965, c 48, § 138.1 et seq.). Under this Act it was specified that compensation would be paid for injury or death only where the accident “arises out of” and “in the course of” the employment.

In the earlier decisions, the court denied compensation in preexisting cardiac cases where there was no accidental injury within the generally understood meaning of the term. See: Jakub v. Industrial Commission, 288 Ill 87, 123 NE 263 (1919). In the case of E. Baggot Co. v. Industrial Commission, 290 v 530, 125 NE 254 (1919), the court held that in order for the injury to be compensable, the strain on the heart must have been due to an unusual or extraordinary exertion and must have resulted in an internal rupture of the heart or connecting blood vessels.

However, in Republic Steel Corp. v. Industrial Commission, 26 Ill2d 32, 185 NE2d 877 (1962); Clifford-Jacobs Forging Co. v. Industrial Commission, 19 Ill2d 236, 166 NE2d 582 (1960); Laclede Steel Co. v. Industrial Commission, 6 Ill2d 296, 128 NE2d 718 (1955) and Bethlehem Steel Co. v. Industrial Commission, 6 Ill2d 290, 128 NE2d 714 (1955), the court has greatly liberalized its interpretation of the “accidental” injury requirement.

In Republic Steel Corp. v. Industrial Commission, supra, at page 45, the court stated:

“To come within the statute the employee must prove that some act or phase of the employment was a causative factor in the ensuing injury. He need not prove it was the sole causative factor nor even that it was the principal causative factor, but only that it was a causative factor in the resulting injury.”

And, in Thomas J. Douglass & Co. v. Industrial Commission, 35 Ill2d 100, 219 NE2d 486 (1966) — where an award for total permanent disability, based upon neurosis following injury, was affirmed — the court stated at pages 104 and 105:

“In the case at bar it is evident that whether a causal relationship existed between the injury and claimant’s mental condition, and whether the latter has rendered him permanently disabled, depend principally upon the medical testimony. Dr. Kesert testified to the presence of such a causal connection and to the permanence of the condition, and one of the respondent’s medical witnesses admitted on cross-examination that there might or could be a traumatic neurosis resulting from amputation of the toes. Although there was other evidence indicating the contrary, the evidence on the whole is such that different inferences could reasonably be drawn therefrom. The determination of these disputed questions of fact, as we have often pointed out, is primarily a function of the Industrial Commission. (Gould National Batteries Inc. v. Ind. Com., No. 39282, 214 NE2d 750; Zion Industries Inc. v. Ind. Com. 33 Ill2d 314.) When the medical testimony is in dispute and the findings of the Industrial Commission cannot be said to be contrary to the manifest weight of the evidence, the decision of the commission will not be disturbed. (Crouch-Walker Co. v. Ind. Com., No. 39481, 215 NE2d 441.) Such is the case here.”

The causal relationship referred to by the Supreme Court in its construction of the Workmen’s Compensation Act can well be equated to the proximate cause in the case at bar. In the life, development and growth of the law, a nice tidy logical perfection of mechanical rules can rarely be achieved and certain basic considerations of justice, fundamental fairness and reasonable expectations arising out of conduct, relations and situations should not be sacrificed in an attempt to achieve such hard and fast rules. We believe that our interpretation of the policy in the case at bar is of the type which yields rational results in real cases; and we recognize that this view, and that urged by the defendant, represent the never ending struggle in the law between certainty and limited flexibility.

We are not impressed by the defendant’s argument that we have erroneously adopted and applied a tort concept to contract law. In the history of the development of the common law, the chancellor, as the keeper of the King’s conscience, would invent and issue writs to ameliorate the inequities of the existing law — and matters involving fraud, accident and breach of confidence were particularly within his competence.

Subsequently, these matters, which sound in tort, were recognized as the basis for a legal action and as a legal defense to varying types of action, particularly those arising out of contract. One of the classic examples of such tort defense is found in contract actions wherein an insured has sued his insurer on an insurance policy and the insurer’s defense is that the insured obtained the policy by virtue of false or fraudulent representations or deceit. And in a myriad of such cases, such defense has prevailed. See: Weinstein v. Metropolitan Life Ins. Co., 389 Ill 571, 60 NE2d 207 (1945); Western & Southern Life Ins. Co. v. Tomasun, 358 Ill 496, 193 NE 451 (1934); Mooney v. Underwriters at Lloyd’s London, 54 Ill App2d 237, 204 NE2d 51 (1964); Cox v. Equitable Life Assur. Society of United States, 333 Ill App 207, 76 NE2d 529 (1947) and cases cited therein. In view of the long and repeated recognition of the right of an insurer to plead and assert a defense sounding in tort to a suit in contract based on the applicable insurance policy, we are not reticent to apply the tort principle of proximate cause in our construction of the meaning of the insuring and exclusionary clauses of the insurance policy under consideration.

Many years ago, Mr. Justice Cardozo made a statement apropos of the circumstances here involved: “The process of justice is never finished, but reproduces itself, generation after generation, in everchanging forms.”

The verity of these words may be found in the decisions of the Illinois courts, among which are: Amann v. Faidy, 415 Ill 422, 114 NE2d 412 (1953), which overruled Allaire v. St. Luke’s Hospital, 184 Ill 359, 56 NE 638 (1900), and held that a viable child, who survives birth, should be permitted upon proper proof, to recover for injuries received before birth; Bradley v. Fox, 7 Ill2d 106, 129 NE2d 699 (1955), which overruled Welsh v. James, 408 v 18, 95 NE2d 872 (1951), and held that one who murders his joint tenant destroys all right of survivorship to jointly held property; Nudd v. Matsoukas, 7 Ill2d 608, 131 NE2d 525 (1956), which held that while the public policy rule of parental immunity from suit by a child may be such justification as to prevent suits for mere negligence within the parental relationship, such policy should not prevent a minor from obtaining redress' for wilful and wanton misconduct on the part of a parent; Molitor v. Kaneland Community Unit Dist. No. 302, 18 Ill2d 11, 163 NE2d 89 (1959), which overruled Kinnare v. City of Chicago, 171 Ill 332, 49 NE 536 (1898), and subsequent cases, and held that the judicially created doctrine of sovereign immunity, as extended to school districts granting them freedom from tort liability, is abolished; and Suvada v. White Motor Co., 32 Ill2d 612, 210 NE2d 182 (1965), which held that the manufacturer or seller of a defective product or component part may be held strictly liable in tort for injuries sustained by a subpurchaser by virtue of the defective product, notwithstanding the absence of privity of contract with the manufacturer or seller.

The enlightened principles manifested in the above decisions sustain the view that the genius and glory of the common law lies in its responsiveness to the existing realities of a dynamic and changing society, and to its awareness of the value of stability and tradition without irrevocable commitment to outworn precedent. Chidester v. Cagwin, 76 Ill App2d 477.

We do not believe that the view adopted by the opinion of this court does violence to the language of the contract. Whether or not a resulting loss is covered must depend on whether or not the accidental injury is the direct and proximate cause thereof. A preexisting disease or illness will relieve the insurer of liability when it is the direct and proximate cause of the loss. Of the dichotomy of views on this problem, we believe that the cases cited and followed by us represent the better rationale.

Accepting all of the evidence with all of the reasonable inferences which may be drawn therefrom in the light most favorable to the plaintiff — as we must do — we cannot say as a matter of law that the preexisting illness, rather than the accidental injury, was the proximate cause of the resulting lass.

With deference and due respect to both the other courts and counsel for the defendant, which embrace views to the contrary, we adhere to our original opinion filed herein.

Reversed and remanded with directions.

MORAN, P. J., concurs.

ABRAHAMSON, J., dissents.