Mechanics' Ins. Co. of Philadelphia v. Hodge

• Decision Date: 31 March 1894
• Citation: 149 Ill. 298,37 N.E. 51
• Parties: MECHANICS' INS. CO. OF PHILADELPHIA v. HODGE.
• Court: Illinois Supreme Court

149 Ill. 298

37 N.E. 51

MECHANICS' INS. CO. OF PHILADELPHIA

v.HODGE.¹

Supreme Court of Illinois.

March 31, 1894.

Appeal from appellate court, first district.

Assumpsit by Chester A. Hodge against the Mechanics' Insurance Company of Philadelphia on a policy of fire insurance. Plaintiff obtained judgment, which was affirmed by the appellate court. 46 Ill. App. 479. Defendant appeals. Affirmed.Barnum, Humphrey & Barnum, for appellant.

W. F. Wiemers and U. P. Smith, for appellee.

Appellee brought suit on a policy of insurance issued by appellant, and recovered a judgment in the circuit court of Cook county for $1,135, which was affirmed on appeal to the appellate court of the first district. An appeal is now prosecuted to this court.

The evidence shows that at the time of issuing this policy the appellee was a manufacturer of spur-wire machines for making fence wire, and his place of business was on the second floor of Burton's block, which was on the corner of Clinton and Van Buren streets, in the city of Chicago, appellee being a tenant. Burton's block was a brick building, six stories high, built for manufacturing. The different parts of this building were let to different persons, each independent and separate manufacturers or business enterprises. On the same floor with appellee were two other tenants,-one, Roberts, of the spurwire fence company. Other enterprises were conducted on the other floors. This policy was issued on the stock and machinery of appellee situated in that part of the building occupied by him in the above building. A fire occurred in that building, greatly damaging it, on June 28, 1889, and appellee sustained damage on his insured property. In July the company was furnished with an invoice of the property of appellee damaged, and on September 7, 1889, proofs of loss were furnished the company. While negotiations for settlement were proceeding appellee removed certain small articles to 793 Warren street, and took from Burton's block, and sold, two spur-wire machines for $1,600. One Marshall, an adjuster for the company, said to appellee he must not take anything from the building until the loss was settled. During the pendency of negotiations for the settlement of this loss a second fire occurred, on September 11, 1889, by which all the appellee's property remaining in the building was destroyed, except as might be its value as old iron. A short time after the fire of June 28th the owner of the building commenced to repair the same, and work in repairing continued until the time of the second fire. October 2d and October 31st, Marshall, the adjuster, in the name of the two companies that had issued policies, wrote to Mr. Hodge, asking for an arbitration to determine the loss and damage under the fire of June 28th, and named Mr. McDonald as their arbitrator, asking the assured also to name one. To these letters Mr. Hodge made no reply. On September 18th the company wrote to Mr. Hodge, saying that they had learned of the second fire, and that he had machinery in the ruins, upon which he claimed a loss; and requesting him to get the property out from the ruins, and in shape, so that his claim might be definitely arrived at and determined. September 28th the companies wrote to him that ‘by reason of the extraordinary work being done on the building lately known as the ‘Burton Block’ they denied any liability for loss by reason of the second fire.' There was evidence tending to show that all the property before there was any fire was worth $5,200.

+----------------------------------------+
                ¦That the three spur machines were¦      ¦
                +---------------------------------+------¦
                ¦then worth                       ¦$2,400¦
                +---------------------------------+------¦
                ¦The patterns                     ¦250   ¦
                +---------------------------------+------¦
                ¦And the remainder of the property¦2,550 ¦
                +---------------------------------+------¦
                ¦                                 ¦$5,200¦
                +---------------------------------+------¦
                ¦The total salvage was on spur    ¦      ¦
                +---------------------------------+------¦
                ¦machines                         ¦$1,600¦
                +---------------------------------+------¦
                ¦On machinery                     ¦225   ¦
                +---------------------------------+------¦
                ¦                                 ¦$1,825¦
                +----------------------------------------+
                

Appellant excepts to the giving, refusing, and modifying of instructions.

The policy contains, among others, these claims: That ‘this policy is subject to the following terms and conditions, and the assured by acceptance of this policy agrees to be bound thereby:’‘(a) The assured hereby covenants and agrees: (2) To notify the company if the above-mentioned premises shall become vacant or unoccupied, and so remain more than thirty days, or any change in the nature or character of occupation, or of any increase of hazard within the control or knowledge of the assured.’‘(b) This policy shall become void and of no effect: (1) By the failure or neglect of the assured to comply with its terms, conditions, and covenants.’‘(e) Mechanics' risk. * * * (1) Mechanics will be allowed to make ordinary alterations and repairs to building, not exceeding fifteen days, during the term of this insurance. Any extension of this privilege must previously be consented to by this company, in writing, on this policy.’ Other clauses are referred to in the opinion, which it is not necessary to here state.

PHILLIPS, J. (after stating the facts).

Where a policy of insurance is issued, and a loss occurs within the terms of the policy that does not amount to the sum insured, the policy will still continue in force, and for a subsequent loss within its terms a recovery may be had, provided the sum recoverable may not, with that paid, exceed the amount insured by the terms of the policy. Curry v. Insurance Co., 10 Pick. 535;Trull v. Insurance Co., 3 Cush. 263;Crombie v. Insurance Co., 26 N. H. 389. And when loss results by reason of successive fires, and no part is paid, the recovery to be had on the policy by reason thereof is a single sum, constituting one loss. When such successive fires have occurred, and the loss has not been in any manner paid, the provisions of a policy providing the loss shall be determined by the agreement between the company and the assured, and, if differences arise, such differences shall, at the request in writing of either party, be submitted to arbitration, does not contemplate a submission of different items of loss to different arbitrators, nor look to the settlement of part of the loss by arbitration and another part to be determined by the adjudication of the courts. The loss to be determined by agreement, or, if differences shall arise, to be determined by arbitration, is the loss sustained by the assured under the terms of the policy. The request of the adjuster asking for an arbitration to determine the loss and damage under the fire of June 28th, made more than 20 days after the loss by the second fire, was not a request to submit to arbitration the loss or damage sustained by the assured under the policy. It was not a request that by the terms of the contract the insured was bound to accede to. The company would have as much right to insist that each article destroyed was a separate loss, and an arbitration be had before different arbitrators as to each item destroyed. The company would have no right to place the assured in the position that he must split up his cause of action into several different causes of action. The second, third, and fourth instructions asked by appellant were upon the question of arbitration as to loss by the first fire, and were refused by the court, which refusal is...