Higgins v. Midland Cas. Co.

• Citation: 281 Ill. 431,118 N.E. 11
• Decision Date: 19 December 1917
• Docket Number: No. 11636.,11636.
• Parties: HIGGINS v. MIDLAND CASUALTY CO.
• Court: Supreme Court of Illinois

281 Ill. 431

118 N.E. 11

HIGGINS

v.MIDLAND CASUALTY CO.

No. 11636.

Supreme Court of Illinois.

Dec. 19, 1917.

Appeal from Appellate Court, Second District, on Appeal from Circuit Court, Winnebago County; Arthur H. Frost, Judge.

Suit by Clarence E. Higgins, by his conservator, against the Midland Casualty Company. Judgment for defendant was affirmed by the Appellate Court, and a certificate of importance granted, and plaintiff appeals. Reversed and remanded.

B. Jay Knight and Karl J. Mohr, both of Rockford (Roy F. Hall, of Rockford, of counsel), for appellant.

R. K. Welsh, of Rockford, and Cleland, Lee & Phelps, of Chicago (McKenzie Cleland, of Chicago, of counsel), for appellee.

CARTER, C. J.

This is a suit in assumpsit brought in the circuit court of Winnebago county for appellant, Clarence E. Higgins, by Grace Higgins, his conservator, against appellee, the Midland Casualty Company, to recover a weekly indemnity under the provisions of an accident insurance policy issued to the appellant by appellee June 20, 1912. A verdict was directed in favor of appellee, and judgment entered thereon. On appeal to the Appellate Court that judgment was affirmed, and a certificate of importance was granted, whereupon this appeal was taken.

The accident upon which the recovery was sought was alleged as a sunstroke suffered by appellant on June 4, 1913. The evidence showed that he (Higgins) was, and had been for months, a traffic policeman in the city of Rockford, Ill.; that on the day in question he was stationed at the corner of Main and State streets, in that city, and in the usual and customary way was performing his duties as policeman, regulating the street traffic, at the time of the sunstroke; that he was a man of temperate habits and in good health. It is conceded that on the day in question he was employed as a policeman on the streets of Rockford; that it was a very warm day, and that by 4:30 p. m. he had been standing in the center of the street intersection for some time; that when the sunstroke occurred he was compelled to leave his employment and go to his home; that shortly thereafter he was confined to his bed, and later was taken to a hospital in said city. The evidence tends to show that as a result of the accident he suffered a complete physical and mental breakdown, from which he has never recovered.

It is conceded that the policy was in full force and effect at the time of the sunstroke. The policy provides, among other things, that appellant was insured ‘against bodily injury (herein called such injury), sustained solely through accidental means.’ The policy further provided in a clause known as ‘Special Indemnities, Section D,’ as follows:

‘Blood poisoning, sunstroke, freezing, hydrophobia, asphyxiation, unprovoked assaults, and choking by swallowing, as the result of such injury, shall be deemed to be included in said term ‘such injury.”

The chief question in dispute is whether the sunstroke was the result of ‘accidental means,’ as that term is used in the policy. Counsel for appellee insist that if the insured suffered the sunstroke when and while he was doing just what he intended to do and in the way he intended, such sunstroke is not sustained through accidental means. The authorities are not in harmony on this question. The principle involved has never been before this court for consideration or decision. The first and perhaps the leading decision relied upon by counsel for appellee is that of Sinclair v. Maritime Passengers' Assurance Co., 3 Ell. & Ell. 478. It was there said that a sunstroke is a disease, and that a disease ‘produced by the action of a known cause cannot be considered as accidental.’ That case was decided in England in 1861 under an accident insurance policy providing for indemnity in the event of ‘personal injury from or by reason of or in consequence of any accident,’ etc. There was no reference in that policy, so far as we can ascertain from a reading of the case, to a sunstroke, either as a disease or as an accident. Similar to that case is Dozier v. Fidelity & Casualty Co. (C. C.) 46 Fed. 446, 13 L. R. A. 114. Perhaps as the result of those decisions a clause in more recent years has been added to accident insurance policies such as the one above quoted, which includes sunstroke as caused by accidental means. In those cases it was considered that a sunstroke could not ordinarily be held to be an accident; that the death of a sailor, if he suffered a sunstroke from the effects of ordinary exposure to the elements while in the line of his duty, could not be held to be caused by accident, but if by shipwreck or other disaster the sailor was compelled to quit the ship and take to the sea in a lifeboat and remained exposed to the heat of the sun in such manner as to cause his death, then his death might properly be held to be the result of an accident. That is the argument of counsel for appellee in this case. To the same effect appear to be the decisions in Semancik v. Continental Casualty Co., 56 Pa. Super. Ct. 392,Elsey v. Fidelity & Casualty Co. (Ind. App.) 109 N. E. 413, and Gallagher v. Fidelity & Casualty Co., 163 App. Div. 556,148 N. Y. Supp. 1016. All of these cases were decided by intermediate courts of review, and not by courts of final jurisdiction. If the reasoning in these cases should be followed, there can be no question but that the judgment of the Appellate Court should be sustained by this court, but there are decisions in other jurisdictions which hold that a sunstroke caused by the sun's rays, happening under circumstances similar to those surrounding this sunstroke, should be held, under this policy, an accident. Bryant v. Continental Casualty Co., 107 Tex. 582, 182 S. W. 673, L. R. A. 1915E, 945;Railway Officials v. Johnson, 109 Ky. 261, 58 S. W. 694,52 L. R. A. 401, 95 Am. St. Rep. 370. See, also, Lovelace v. Travelers' Protective Ass'n, 126 Mo. 104, 28 S. W. 877,30 L. R. A. 209, 47 Am. St. Rep. 638;Hutchcraft's Ex'r v. Travelers' Ins. Co., 87 Ky. 300, 8 S. W. 570,12 Am. St. Rep. 484. The opinion in Bryant v. Continental Casualty Co., supra, contains a most illuminating discussion on this question, reviewing and distinguishing practically all the authorities relied upon by appellee. In that case it was held that death by sunstroke, under circumstances similar to those here under consideration, was as clearly an accident as was death by a stroke of lightning.

If the death of an insured person by sunstroke was due to accidental means, the law implies that his death was due to violent and external means. Paul v. Travelers' Ins. Co., 112 N. Y. 472, 20 N. E. 347, 3 L. R. A. 443, 8 Am. St. Rep. 758; Healey v. Mutual Accident Ass'n, 133 Ill. 556, 25 N. E. 52,9 L. R. A. 371, 23 Am. St. Rep. 637. This court has recently had occasion to consider and decide the meaning of the term ‘accidental means,’ as used in accident insurance policies, in Hutton v. States Accident Ins. Co., 267 Ill. 267, 270, 108 N. E. 296 (L. R. A. 1915E, 127, Ann. Cas. 1916C, 577), and there stated:

‘An effect which is the natural and probable consequence of an act or course of action cannot be said to be produced by accidental means.’

This court there reviewed several cases as illustrating what was meant by accidental means and what would be considered the natural and probable consequence of an act or course of action under certain conditions. Other cases illustrating this same point are referred to at some length in the note to this case in Ann. Cas. 1916C, 579.

Doubtless a leading case on the question of accidental means and recovery under an accident insurance policy is that of United States Mutual Accident Ass'n v. Barry, 131 U. S. 100, 9 Sup. Ct. 755, 33 L. Ed. 60. That case is cited in most of those referred to by counsel on either side of this case, and the reasoning in the decision of the federal Supreme Court in that case is relied on by both counsel in this case to sustain their respective positions. The injured man in that case was a physician 30 years of age at the time of his death. Before that time he was strong and robust, weighing from 160 to 175 pounds. With two other physicians he visited a patient who lived in a house behind a drug store. On coming out of the house they were on a platform which was four or five feet from the ground, and if they got off from the platform it was but a short distance to the back part of the drug store, where they desired to go. The other two physicians jumped from the platform and alighted all right, but Dr. Barry jumped after them, and his companions testified that he came down so heavily that it attracted their attention; that it sounded as if he struck on his heels instead of on his toes. The evidence showed that as a result of this jump he suffered an injury of the duodenum, was taken sick immediately, and died from the result of the injury within a few days. The court, in discussing the question, said (131 U. S. 121, 9 Sup. Ct. 762, 33 L. Ed. 60):

‘The two companions of the deceased jumped from the same platform, at the same time and place, and alighted safely. It must be presumed not only that the deceased intended to alight safely, but thought that he would. The jury were, on all the evidence, at liberty to say that it was an accident that he did not. The...