Opinion
No. 8061.
December 9, 1942. Rehearing Denied January 16, 1943.
Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; Charles E. Woodward, Judge.
Action on an insurance policy by Ruth P. Fisher against Underwriters at Lloyd's, London. From a judgment for plaintiff, defendant appeals.
Affirmed.
Plaintiff brought this action on an insurance contract issued by defendant which covered loss due to inability, because of bodily injury, to fulfill engagements as a classical dancer. Summary judgment, pursuant to Rule 56, of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, was entered in plaintiff's favor. Defendant complains because the court entered its judgment in plaintiff's favor and also because the court did not enter a summary judgment in defendant's favor. The cause has been before this court on two previous occasions — 115 F.2d 641, and Fisher v. Lord, 125 F.2d 117.
The Facts. The first trial of this action in the District Court, without a jury, resulted in a judgment for the plaintiff. The recovery was for sixteen days' disability within the period from January 24 to March 4, 1938.
The contract coverage of $200 per day was for "total disablement which either permanently or temporarily disables the insured and prevents the insured from fulfilling her engagements as a classical dancer while on tour through the southern states of the United States."
The evidence, which is undisputed, justified the finding that plaintiff met with an accident at Castle Hot Springs, Arizona, on January 10, 1938, by tripping and falling through a glass skylight; and that her injuries were disabling.
There was evidence tending to show that she had engagements with certain impresarios covering the days from January 24 to March 4, 1938, and she was unable to appear for her performances.
The contest is over the existence of a loss due to her disability. Defendant does not controvert the accident or her disability. It demanded proof of prevention of actual slated performances.
The court found the existence of the contract; that plaintiff suffered disability as defined in the coverage notes 3018 and 3019, by reason of an accident at Castle Hot Springs, Arizona, such disability continuing for sixteen days during the period from January 24 to March 4, 1938; that she had contracts for engagements on each day between January 24 and March 4, 1938, both inclusive, with one Clarence E. Cramer for each day between January 24 and February 12, 1938, with M.C. Turner for each day between February 13 and February 20, 1938, and with Russell Bridges for each day between February 21 and March 4, 1938, both inclusive; that her compensation for each day's performance exceeded $200.
As conclusions of law, the court found in favor of the plaintiff. The vital one of several conclusions was that "plaintiff's contracts for engagements with Clarence E. Cramer, M.C. Turner and Russell Bridges, for each day between January 24 and March 4, 1938, both inclusive, are contracts or agreements for engagements as defined in paragraph seven" of the insurance contract.
David J. Kadyk and Leonard F. Martin, both of Chicago, Ill., for appellant.
Norman Crawford, of Chicago, Ill., for appellee.
Before EVANS, KERNER, and MINTON, JJ.
In view of our previous decisions we need consider only two questions. (1) Does the evidence support the finding of plaintiff's employment by the three impresarios? (2) Should the court have entered a summary judgment in this case under Rule 56 of the Federal Rules of Civil Procedure?
Counsel for appellant argue that the affidavits upon which plaintiff relies, do not show loss because of the accident. The trial court thought otherwise. If defendant were in doubt as to plaintiff's veracity or were uncertain as to the meaning of the words in the affidavits (which words were neither doubtful nor uncertain to the trial court), it could have adversely examined the plaintiff. We agree, however, with the District Court that the affidavits were not of doubtful meaning, but showed loss by plaintiff of more than $200 per day because her accident prevented her from carrying out her existing contract with the impresarios under whom she was performing.
The entry of a summary judgment was justified in view of the fact that previous trials and appeals had narrowed the issues to a single one of fact. That fact was established by affidavits (if proof there was) which were not controverted or opposed by any proffered proof on the part of the defendant.
It was, therefore, we think, a clear case for final and prompt disposition. If the affidavits supplied the necessary proof of damage, the summary judgment should be for the plaintiff. If the affidavits failed on the single question in issue, then defendant was entitled to the summary judgment.
Agreeing with the District Court as to the existence of such proof, and that it established the plaintiff's contention, we conclude that the judgment should be, and it is,
Affirmed.