Ziolkowski v. Cont'l Cas. Co.

• Citation: 7 N.E.2d 451,365 Ill. 594
• Decision Date: 13 April 1937
• Docket Number: Gen. No. 23842.
• Parties: ZIOLKOWSKI v. CONTINENTAL CASUALTY CO.
• Court: Supreme Court of Illinois

365 Ill. 594

7 N.E.2d 451

ZIOLKOWSKI

v.CONTINENTAL CASUALTY CO.

Gen. No. 23842.

Supreme Court of Illinois.

Feb. 18, 1937.

Rehearing Denied April 13, 1937.

Action by Steve Ziolkowski against the Continental Casualty Company. A judgment for plaintiff was affirmed by the Appellate Court [284 Ill.App. 505, 1 N.E.(2d) 410], and the Supreme Court granted defendant leave to appeal.

Affirmed.Appeal from Second Branch Appellate Court, First District, on Appeal from Superior Court, Cook County; John W. Preihs, Judge.

George C. Bliss, of Chicago, for appellant.

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

FARTHING, Justice.

We granted appellant, the Continental Casualty Company, leave to appeal from a judgment of the Appellate Court for the First District in favor of Steve Ziolkowski, appellee, who was the beneficiary named in the accident insurance policy issued by the company to the deceased, Joseph Sarnowski.

On May 19, 1930, Ziolkowski filed the declaration, containing one count and also a copy of the policy of insurance, in the superior court of Cook county. He obtaineda judgment in that court, but on the first appeal, the judgment was reversed and the cause remanded for a new trial, because of the exclusion of certain documentary evidence. See Ziolkowski v. Continental Casualty Co., 263 Ill.App. 31. The second trial also resulted in a judgment for the plaintiff but the Appellate Court again reversed the judgment and remanded the cause to the superior court for a new trial and found, from the evidence in the record then before it, that death of the insured resulted from the intentional act of a third person. See Ziolkowski v. Continental Casualty Co., 270 Ill.App. 286. This decision was made in April, 1933. The abstract shows that the mandate of the Appellate Court was ordered on January 4, 1935, and that on January 25, 1935, an order was entered in the superior court of Cook county, reinstating the case and placing it at the foot of the trial calendar. The third trial was had before the court, without a jury, and resulted in a judgment for plaintiff for $2,979 and costs. It is the affirmance of this judgment by the Appellate Court that is involved in this appeal. See Ziolkowski v. Continental Casualty Co., 284 Ill.App. 505, 1 N.E.(2d) 410.

Appellant filed a plea of the general issue to the declaration. It also filed two special pleas in the first of which it is alleged that ‘the injury causing the loss of life of insured resulted from an intentional act of the insured or some other person’; and in the second of which it is alleged 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 insured 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. Replications were filed to these special pleas, but at the close of the evidence in the third trial, appellee withdrew his replications and filed a demurrer to the pleas, by leave of court, and his demurrer was sustained.

Appellant relies on the following part of the policy, in support of its contention that the death of Sarnowski was not covered thereby: ‘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;’ etc. The heading of the policy is: ‘This policy provides indemnity for loss of life, limb, limbs, sight or time caused by accidental means-all to the extent herein provided.’ It is also provided, in the forepart of the policy, that the company promises to pay ‘indemnity for loss of life (suicide or self-destruction while either sane or insane not included,) limb, limbs, sight or time resulting from a personal bodily injury which is effected solely and independently of all other causes by the happening of an external, violent and purely accidental event, and which causes at once after such event total and continuous inability to engage in any labor or occupation, all in the manner and to the extent hereinafter provided. The word injury wherever hereinafter used means injury such as here described.’

No question was raised as to notice and proof of loss.

It is not necessary to set out the testimony in detail. Briefly stated, it is shown that the policy was issued to Sarnowski with appellee as beneficiary, wherein the company promised to pay $2,400 for the loss of Sarnowski's life, and this policy was in force at his death. On Sunday, February 23, 1930, shortly before midnight, Sarnowski and one Peter Kulik, both of whom were of Polish extraction, were walking north on the east side of Burley avenue, in Chicago. They overtook three Mexicans who shoved them off the sidewalk, stabbed Kulik in the stomach and Sarnowski in the heart. Sarnowski fell to the street, was taken to the hospital and died three hours later from shock, and hemorrhages from the stab wound due to external violence inflicted by a knife or sharp instrument. Neither Kulik nor Sarnowski knew any of the three men. There had been an altercation between Mexicans and Polish people around 9 o'clock this Sunday evening, near Eighty-Fourth street and Mackinaw avenue, one block east of Burley avenue, but there is no testimony showing that Kulik, Sarnowski, or any of the three Mexicans they encountered on Burley avenue near midnight, had any part in the earlier trouble. After the men were injured, the Mexicans threw bricks through the windows of a restaurant into which Kulik had been carried. There is no evidence of any act on the part of Kulik or Sarnowski as they approached and reached the point where they were attacked, that would provoke an assault.

The Appellate Court correctly held that its mandate was filed within the time allowed by law and that the period of two years, provided by the Practice Act of 1907 (Smith-Hurd Ill.Stats. c. 110 appendix, § 114), was that applicable in this case. The opinion was filed in that court on April 11, 1933, and the mandate was filed in the superior court of Cook county on January 5, 1935. The cause was ordered reinstated on January 25, 1935, and tried on February 20, 1935. The one-year provision of the Civil Practice Act (Smith-Hurd Ill.Stats. c. 110, § 212) relative to filing mandates is not applicable to this cause. The presumption is against the intention to make a statute retrospective in its effect on existing causes of action, even though the Legislature has power to cut down the time allowed previously to take procedural steps in pending litigation. Hathaway v. Merchants' Loan & Trust Co., 218 Ill. 580, 582, 75 N.E. 1060,4 Ann.Cas. 164. In addition, rule 1 of this court, adopted at our December term, 1933 (Smith-Hurd Ill.Stats. c. 110, § 259.1), after stating what the Civil Practice Act shall apply to, says: ‘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.’ The appellee therefore filed the mandate of the Appellate Court and had the cause reinstated in the superior court of Cook county, in accordance with law.

The appellant contends that the trial court was bound by the decision of the Appellate Court, rendered on the second appeal, and that it was error to permit appellee to withdraw his replications to the two special pleas and to demur to those pleas. Appellant also contends that the record in the third appeal is the same, or substantially the same, as that presented on the second appeal, and that appellee could not again raise the contention that Sarnowski's death was not due to an intentional act within the meaning of the policy.

In Rigdon v. More, 242 Ill. 256, 89 N.E. 992,134 Am.St.Rep. 328, we held that if a judgment in an ordinary suit at law, in which the parties are entitled to a jury trial, is reversed by the Supreme Court for errors intervening prior to the entry of the judgment and the cause is remanded generally, the parties are entitled to a trial de novo. It is only where the reversal is for error occurring after the entry of the verdict that the Supreme Court may direct the entry of a proper judgment on remanding a cause at law in which the parties are entitled to a jury trial.

A court of review, in reviewing a judgment or decree, may, in a proper case, remand the cause to the trial court, and if the parties are entitled to a trial by jury, as they were in the case before us, the trial court must, of course, be governed by the legal principles contained in the opinion of the reviewing court, but its conclusions as to matters of fact do not control on a later trial where the facts are to be determined in that trial. Prentice v. Crane, 240 Ill. 250, 88 N.E. 654.

We reviewed many important decisions on the question of the effect of a reviewing court's order of reversal, in People v. Lord, 315 Ill. 603, 146 N.E. 506. At page 610 of 315 Ill.,146 N.E. 506, we pointed out that there is a wide difference in the...