Ziolkowski v. Cont'l Cas. Co.

• Decision Date: 23 April 1936
• Docket Number: Gen. No. 38397.
• Citation: 284 Ill.App. 505,1 N.E.2d 410
• Parties: ZIOLKOWSKI v. CONTINENTAL CASUALTY CO.
• Court: United States Appellate Court of Illinois

284 Ill.App. 505

1 N.E.2d 410

ZIOLKOWSKI

v.CONTINENTAL CASUALTY CO.

Gen. No. 38397.

Appellate Court of Illinois, First District, Second Division.

April 7, 1936.

Rehearing Denied April 23, 1936.

Appeal from Superior Court, Cook County; John W. Preihs, Judge.

Action by Steve Ziolkowski against the Continental Casualty Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

George C. Bliss, of Chicago, for appellant.

Peden, Melaniphy, Ryan & Andreas, of Chicago (John C. Melaniphy, of Chicago, of counsel), for appellee.

SCANLAN, Presiding Justice.

Plaintiff sued defendant in assumpsit as beneficiary under an accident insurance policy issued by defendant to one Joseph Sarnouski. The case was tried by the court, the issues were found for plaintiff, and damages were assessed in the sum of $2,979. Defendant appeals from a judgment entered upon the finding.

This was the third trial of the cause. In the first there was a finding and judgment in favor of plaintiff, and upon appeal we reversed the judgment and remanded the cause because of the refusal of the trial court to admit certain documentary evidence offered by defendant. Ziolkowski v. Continental Casualty Co., 263 Ill.App. 31. Upon the second trial the issues were found for plaintiff and damages were assessed in the sum of $2,645, and upon appeal we reversed the judgment and remanded the cause. 270 Ill.App. 286. The parties then stipulated that all the evidence which was presented at the second trial would be admitted in evidence upon the third trial. No additional evidence was heard.

To quote from our opinion upon the first appeal (263 Ill.App. 31, 32, 33): “The declaration, consisting of one count, contained a copy of the contract of insurance. The defendant filed a plea of the general issue and two special pleas, the first special plea alleging ‘that the injury causing the loss of life of insured resulted from an intentional act of insured or some other person’; and the second special plea alleging ‘that the injury causing the loss of life of insured resulted from an intentional act of another person, to-wit, a stab wound, which assault was not committed upon the assured by such other person for the sole purpose of burglary or robbery and which assault was not incurred by insured while engaged in the proper performance of the duties of his occupation and provoked solely thereby,’ etc. The plaintiff filed replications to the two special pleas.”

Upon the instant hearing, after both sides rested, at the suggestion of the trial court, plaintiff withdrew the replications to the second and third pleas and filed a general demurrer, attached to which was the following “causes of demurrer”:

“And the plaintiff shows to the Court here the following causes of demurrer to said second and third pleas, that is to say:

“1. That the term ‘injury’ as used in said second plea and in part 5 of said Insurance Policy, Sub-paragraph 3, does not include fatal injury, but is confined to non-fatal injuries.

“2. In that the third plea is insufficient in that the word ‘injury’ as used in said plea and in part 5 of said Insurance contract, sub-paragraph 3, does not include fatal injuries, but is confined to non-fatal injuries.

“3. In that Part 5 of said Insurance Policy does not exempt the defendant from liability where the Insured was killed by means of accident, even though the act or acts causing the death of the Insured were intentional.

“Wherefore, for want of sufficient pleas in this behalf the plaintiff prays judgment and that the defendant may answer further to said declaration,” etc.

The court sustained the demurrer and entered the instant judgment.

Defendant contends that “the mandate of this court reversing and remanding this cause was not filed (in the trial court) within the one year limitation period provided by the (new) Civil Practice Act,” effective January 1, 1934 (Smith-Hurd Ann.St. c. 110, § 212; Cahill's Ill.Rev. Stat.1933, c. 110, Par. 216). Under the old Practice Act (Smith-Hurd Ann.St. c. 110, appendix, § 114; Cahill's Rev.St.1931, c. 110, par. 114), a two-year period was provided. Our opinion and judgment was filed on April 11, 1933, the mandate was filed in the superior court on January 5, 1935, and the cause was reinstated for trial on January 25, 1935, and was tried on February 20, 1935. Rule 1 of the Rules of Pleading, Practice and Procedure, adopted by the Supreme Court of Illinois at the December term, 1933 (Smith-Hurd Ann. St. c. 110, § 259.1; Ill.Rev.Stat.1935, c. 110. par. 223), provides: “Applicability of Civil Practice Act. All provisions of the Civil Practice Act with respect to review in civil proceedings by the Supreme or Appellate Courts shall apply to orders, determinations, decisions, judgments or decrees entered by trial courts on or after January 1, 1934. All suits in which a summons has been issued prior to January 1, 1934, but in which no pleadings have been filed by either party prior thereto, shall be governed by the Civil Practice Act. The provisions of the Civil Practice Act with respect to service of process issued on or after January 1, 1934 (sections 6, 10, 13-19), appearance (section 20), and trial practice (sections 48-73), shall apply to proceedings instituted prior to January 1, 1934, and not on trial prior to that day. Except as provided by this rule, or by written stipulation of parties, or by order of the court, upon notice and motion, proceedings instituted prior to January 1, 1934, shall not be governed by the Civil Practice Act.” (Italics ours.)

We hold that the time limit fixed by the new Practice Act did not apply to the instant proceeding and that plaintiff filed the mandate within the time fixed by the old Practice Act.

There is no merit in defendant's contention that, “in view of the opinion of this court reversing and remanding the cause, the trial court erred in entering judgment on the same record containing the same evidence as was before this court in the former appeal.” Our decision upon the second appeal turned solely upon the question as to whether or not, under the undisputed evidence, the act of the Mexican was intentional within the meaning and intent of part V of the policy, and we held that it was intentional. The present contention of plaintiff that clause (3) did not exclude liability for the intentional killing of the insured by another was not raised upon that appeal. In our opinion, reversing that judgment and remanding the cause for a new trial, we stated: “We have reached the conclusion that justice requires a retrial of this cause.” In the instant appeal the major issue is whether the word “injury,” as used in part V (3) of the policy includes “fatal injury.” Upon the third trial the trial court had control of the pleadings, and had the right to permit plaintiff to file the demurrer to the special pleas in order to directly raise an issue essential to his right of recovery.

Defendant contends that “part V of the contract of insurance is not ambiguous. Its terms are definite and certain. It precludes recovery in this case on the undisputed facts.” The material part of part V reads as follows:

“Part V. Not Covered.

“This policy does not cover any loss * * * (3) if the injury causing it results from the intentional act of the Insured or of any other person excepting, however, assaults committed upon the Insured for the sole purpose of burglary or robbery and also excepting assaults incurred by the Insured while engaged in the proper performance of the duties of his occupation and provoked solely thereby. * * *”

Plaintiff contends that part V (3) does not preclude a recovery where the injuries to the insured are fatal. Defendant contends that it does. The trial court sustained plaintiff's position. We have recently had occasion to pass upon the same language in another policy of this defendant. Porter v. Continental Casualty Co., 277 Ill.App. 492. There the provision was part IX (3). To quote from our opinion (277 Ill.App. 492, at pages 500-502):

“Plaintiff further contends that even if clause (3) were not a violation of clause (6), nevertheless, it must be held, under the phraseology of the clause and the rules of law that govern its interpretation, that it excludes indemnifiable losses payable to the insured which might result from the intentional acts of himself or any other person but does not exclude liability for the intentional killing of the insured by another; that if the defendant intended to protect itself against the liability for the intentional killing of the insured by another, it could have readily so provided, in clause (3), by apt words that would have apprised the insured that the policy did not cover any loss resulting from a fatal injury intentionally inflicted upon him by another person, and plaintiff further argues that the word ‘injury,’ as used in the clause, must be held to mean a bodily harm that does not result in death. Webster's New International Dictionary defines ‘injure’ as follows: ‘To do harm to; to hurt; damage; impair; to hurt or wound, as the person; to impair the soundness of, as health’; and defines the word ‘injury’ as ‘Damage or hurt done to or suffered by a person or thing; detriment to, or violation of, person, character, feelings, rights, property, or interests, or the value of a thing.’ Funk and Wagnalls' New Standard Dictionary of the English Language defines ‘injury’ as follows: ‘Whatever reduces the utility or mars the integrity of the body.’ In Interstate Business Men's Accident Ass'n v. Dunn, 178 Ky. 193 [198 S.W. 727, 6 A.L.R. 1333], the policy insured against certain accidental injuries and provided that if the insured sustained any of the said injuries and death resulted the company would pay the beneficiary $5,000. It further provided that the insurance ‘shall not extend to or cover any loss due to * * * the act of any person done to injure the insured.’ The insured was intentionally shot and killed and the company...