Preston v. Aetna Life Ins. Co.

• Decision Date: 16 May 1949
• Docket Number: No. 9678.,9678.
• Citation: 174 F.2d 10
• Parties: PRESTON v. ?TNA LIFE INS. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

174 F.2d 10 (1949)

PRESTON v. ?TNA LIFE INS. CO.

No. 9678.

United States Court of Appeals Seventh Circuit.

April 14, 1949.

Rehearing Denied May 16, 1949.

Albert S. Barney and Edward J. Fleming, both of Chicago, Ill., for appellant.

Vincent O'Brien and Thomas J. Johnson, Jr., both of Chicago, Ill., for appellee.

Before MAJOR, Chief Judge, and MINTON and DUFFY, Circuit Judges.

DUFFY, Circuit Judge.

This action was commenced in the Circuit Court of Cook County, Illinois, upon a contract of accident insurance entered into in the State of Illinois. It was removed to the United States District Court by reason of diversity of citizenship and jurisdictional amount. This appeal is from a summary judgment dismissing the complaint.

At the threshold we are met with defendant's motion to dismiss the appeal upon the ground that same was not filed within 30 days of the judgment as prescribed by Rule 73(a), Federal Rules of Civil Procedure, as amended, 28 U.S.C.A. This court heretofore entered an order denying defendant's motion to dismiss, without prejudice to a renewal of the motion at the time of the hearing on the merits. Such motion was renewed.

At the time this action was removed from the State court to the District Court, the statute, 28 U.S.C.A. ß 230^*, permitted an appeal to be taken within three months after the entry of judgment or decree. Amendments to the Federal Rules of Civil Procedure were subsequently adopted, effective March 19, 1948. Rule 73(a), as amended, limited the time for taking an appeal to 30 days. The change with respect to the time in which to take an appeal is valid, Hart v. Knox County, Tenn., 6 Cir., 171 F.2d 45, 46, and controls unless validly changed to the former procedure under Rule 86(b). This latter rule provides that the amended rules "govern all proceedings in actions brought after they take effect and also all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action pending when the amendments take effect would not be feasible or would work injustice, in which event the former procedure applies."

Not within 30 days but within three months after the date of the judgment of dismissal, Judge Igoe⁽¹⁾ entered an order in which he specifically found that limiting the time to appeal to 30 days under new rule procedure would work an injustice and that the former procedure should apply, and he granted leave to file the notice of appeal.

The purpose of the exception in Rule 86 in the original rules was to prevent injustice during the transition period from the old procedure to the then new procedure under the Federal Rules of Civil Procedure when they first became effective on September 1, 1938. This portion of the rule remained intact when the amendments to the rules were adopted in 1948. On both occasions it was recognized that during any transition period when old procedure gives way to a different procedure under new rules or amendments, confusion was likely to result as to which rules apply to cases commenced before the effective date of such changes, and that in fairness to the parties the district court should have the jurisdiction to permit continuation of the former procedure in those cases where application of the new procedure would work injustice or not prove feasible. The provisions in the exceptions to Rule 86, Federal Rules of Civil Procedure, and Rule 86(b), Federal Rules of Civil Procedure, as amended, are a considerate solution of the problem of devising a simple and expeditious method of transition from old to new practice. See: Holtzoff, New Federal Procedure and The Courts, p. 165.

Judge Igoe specifically found that denying permission to apply the former procedure would work injustice. Certainly it would not have been feasible under the circumstances then present to have ruled that the shorter time in which to take the appeal as specified in the new rules should apply. We hold that Judge Igoe did not abuse his discretion in permitting the application of the former procedure since the motion to permit the former procedure was made within the three-month period in which an appeal could be taken under the old rules. Therefore, the motion to dismiss this appeal is denied.

Defendant invites our attention to the per curiam opinion of this Court in Ray et al. v. Morris et al., 170 F.2d 498. True it is that this Court there granted the motion to dismiss because the notice of appeal was not timely filed, and also refused to grant relief under Rule 86(b). However, in that case appellant had not made a motion for application of the former procedure to the district court or to this court within the three-month period permitted by the old rules for filing the notice of appeal. The mere filing of the notice of appeal itself within the three-month period, without more, was in no way a compliance with the requirements of Rule 86(b) and, furthermore, having permitted the three-month period to expire, which was the maximum time allowed in which to appeal under the old procedure, it would have availed plaintiff therein nothing to have had the former procedure applied.

Turning to a consideration of this case on the merits, we must construe and interpret this Illinois insurance contract pursuant to Illinois law. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. As the highest State court of Illinois has not passed upon the question here in issue, we are required to ascertain from all available data what the applicable State law is in the light of the decisions of the lower courts of that State.

The United States Supreme Court has recently ruled that federal courts in South Carolina need not follow the decisions of a Court of Common Pleas of that State, King v. Order of United Commercial Travelers of America, 333 U.S. 153, 68 S.Ct. 488, even though such court has some limited appellate jurisdiction. It appeared, however, that the decisions of such courts in South Carolina are not reported, and that under State practice they are not considered as establishing precedents to be followed by other courts of the State.

However, it is now well established that federal courts are bound by the decisions of State intermediate appellate courts unless there is persuasive evidence that the highest State court would rule otherwise. Six Companies of California et al. v. Joint Highway District No. 13 of California, 311 U.S. 180, 61 S.Ct. 186, 85 L.Ed. 114; West et al. v. American Telephone & Telegraph Co., 311 U.S. 223, 61 S.Ct. 179, 85 L.Ed. 139, 132 A.L.R. 956; Stoner v. New York Life Insurance Co., 311 U.S. 464, 61 S.Ct. 336, 85 L.Ed. 284. In West et al. v. American Telephone and Telegraph Co., supra., 311 U.S. at page 237, 61 S.Ct. at page 183, 85 L.Ed. 139, 132 A.L.R. 956, the Supreme Court said:

"When an intermediate appellate state court rests its considered judgment upon the rule of law which it announces, that is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise. * * *"

Therefore, in order to ascertain the rule of decision of the State of Illinois, we must examine the decisions of the Illinois intermediate appellate courts which, unfortunately, are in conflict on the issue before us.

Nevertheless, we are admonished that difficulty in ascertaining what the highest State court may hereafter determine the law to be, applicable to the facts presented, is no reason for a federal court to decline to make a decision. Meredith et al. v. Winter Haven et al., 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9.

The insurance policy with which we are here concerned insured plaintiff "against loss resulting directly and independently of all other causes from bodily injuries sustained during the term of this Policy and effected solely through accidental means * * *" The policy also contained an exclusion clause reading, "The insurance under this Policy shall not cover * * * injury * * * or other loss caused directly, wholly or partly, * * * (2) by disease in any form * * *."

On October 20, 1944, while the policy was in full force and effect, plaintiff was seated at his desk, dictating. He had removed the shoe from his right foot because it was sore. While raising his right foot to put it on the desk the base of his great toe struck either the corner of the desk or the corner of the glass top covering the desk. Plaintiff felt immediate pain in the toe and later it became black and blue. Thereafter an ulcer developed on the toe which failed to heal. Gangrene set in and on January 6, 1945, within the 90-day period prescribed in the policy, plaintiff's right leg was amputated below the knee.

Prior to striking his toe plaintiff had experienced pains in his right leg, the history of such pains and discomfort dating back to 1941. At times his right foot became white lacking the usual color of flesh, and felt numb and cold. For at least a year prior to October 20, 1944, plaintiff had been under medical treatment for circulatory trouble in his right leg, which had been diagnosed as peripheral vascular disease involving chiefly the arteries of the right leg, the underlying cause being arteriosclerosis. Plaintiff received treatment by exercise, massage and contrast baths which proved beneficial. There were intervals when he had no symptoms of pain. The condition in his leg became stabilized.

Dr. Jack's affidavit disclosed that after plaintiff left Johns-Hopkins Hospital in 1943 he got along very well. Pulsations returned to his right foot, and the foot was pink and alive, without numbness or pain. The doctor states, "Preston did remarkably well and there was a gradual improvement in his symptoms, with finally the disappearance of all symptoms; with the peripheral vascular condition stabilized and with circulation adequate the condition became a body...