Capps v. Nat'l Union Fire Ins. Co.

• Decision Date: 28 October 1925
• Docket Number: No. 16689.,16689.
• Parties: CAPPS v. NATIONAL UNION FIRE INS. CO.
• Court: Illinois Supreme Court

318 Ill. 350

149 N.E. 247

CAPPS

v.NATIONAL UNION FIRE INS. CO.

No. 16689.

Supreme Court of Illinois.

Oct. 28, 1925.

Error to Appellate Court, Fourth District, on Appeal from City Court of West Frankfort; J. P. Mooneyham, Judge.

Action by Ben Capps against the National Union Fire Insurance Company. Judgment for plaintiff was affirmed by the Appellate Court, and defendant by leave of court brings certiorari.

Judgments reversed.C. E. Feirich, of Carbondale, and Moses Pulverman, of Benton (Tilman B. Cantrell, of Benton, of counsel), for plaintiff in error.

J. E. Carr, of West Frankfort, and George Sawyer, of Marion, for defendant in error.

THOMPSON, J.

This statutory writ of certiorari is prosecuted by leave of court to review the judgment of the Appellate Court for the Fourth district affirming the judgment of the city court of West Frankfort for $1,800 in favor of defendant in error in his action of assumpsit on a fire insurance policy issued to him by plaintiff in error.

The policy on which this action is based insured for a term of three years from January 4, 1922, against loss or damage by fire, lightning, or tornado, to an amount not exceeding $1,200, the dwelling house located on lot 6, block 19, in West Frankfort, and to an amount not exceeding $1,200, the household furniture contained in said dwelling. A single premium amounting to $34.60 was paid at the time the policy was delivered. Printed on the policy is a condition that--

‘This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein; * * * or if the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance be a building on ground not owned by the insured in fee simple.’

March 16, 1921, defendant in error entered into an agreement with D. C. Jones to purchase the real estate described in the policy and agreed to pay $1,800 for the property; $25 in cash and $25 every two weeks thereafter until such time as he could secure a loan for the balance due. At the time the policy was issued he had made payments amounting to $350, which was less than the amount due under his contract. About January 1, 1922, he applied for insurance to J. H. Ghan, a real estate agent in West Frankfort. Ghan made a memorandum of the property to be insured and the amount of insurance wanted and turned it over to J. A. Lewis, the agent of plaintiff in error, who issued the policy. No written application for insurance was made by the insured, no questions were asked the insured regarding his title, and the insured did not disclose the fact that he did not own the real estate described in the policy any made no representation whatever concerning his title. The building and its contents burned two months after the policy was issued. Plaintiff in error refused payment of the claim for loss and defendant in error filed his declaration basing his action on the policy, which he set out verbatim. Plaintiff in error filed a plea of nonassumpsit, and issue was joined thereon. There are in the record a number of special pleas setting up the defense of want of title in the insured, replications to these pleas, and demurrers to the pleas and replications but the state of the record renders all these pleadings immaterial to the decision of the case. A trial was had under the general issue and the jury found in favor of the insured.

[1] All matters of defense of want of title in the insured set up in the special pleas were tried under the general issue. Since the parties have tried the case on the theory that all evidence supporting the defense of want of title was properly admissible under the general issue and present the case here on the same theory, we shall so consider it. There being no objection in the trial court or assignment of cross-error in this court questioning the admissibility of this evidence under the issue as formed, we do not consider the question.

[2][3][4][5] It is definitely established by decisions of this court that the vendee under an executory contract of sale has neither the legal nor equitable title to the property covered by the contract. Budelman v. American Ins. Co., 297 Ill. 222, 130 N. E. 513;National Fire Ins. Co. v. Three States Lumber Co., 217 Ill. 115, 75 N. E. 450,108 Am. St. Rep. 239;Phenix Ins. Co. v. Caldwell, 187 Ill. 73, 58 N. E. 314;Langlois v. Stewart, 156 Ill. 609;Chappell v. McKnight, 108 Ill. 570. It is also settled that conditions in a policy of fire insurance rendering the policy void if the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee simple, are reasonable and valid, and that a breach of such conditions, or either of them, is a bar to a recovery under the policy, in the absence of a waiver of the condition or an estoppel which precludes the company from making its defense. Crikelair v. Citizen's Ins. Co., 168 Ill. 309, 48 N. E. 167,61 Am. St. Rep. 119;Hebner v. Palatine Ins. Co., 157 Ill. 144, 41 N. E. 627;Reaper City Ins. Co. v. Brennan, 58 Ill. 158, 11 Am. Rep. 54. Unless he has been misled by some act of the insurer, it is generally held that a person who accepts and retains the possession of an insurance policy is bound to know its contents. Crikelair v. Citizen's Ins. Co., supra; In re Millers' and Manufacturers' Ins. Co., 97 Minn. 98, 106 N. W. 485,4 L. R. A. (N. S.) 231;Wierengo v. American Fire Ins. Co., 98 Mich. 621, 57 N. W. 833;Bostwick v. Mutual Life Ins. Co., 116 Wis. 392, 89 N. W. 538,92 N. W. 246,67 L. R. A. 705.

[6][7] The conditions of the policy concerning title being valid and the breach thereof being established by the evidence, it is clear, under the authorities, that the insured cannot recover unless there is a waiver or an estoppel. He cannot recover on the theory that the insurer has waived the breach of the condition, which would otherwise bar a recovery,unless he produces evidence establishing the fact of waiver. Feder v. Midland Casualty Co., 316 Ill. 552, 147 N. E. 468;Old Colony Life Ins. Co. v. Hickman, 315 Ill. 304, 146 N. E. 132;Seaback v. Metropolitan Life Ins. Co., 274 Ill. 516, 113 N. E. 862. The evidence in this record not only shows that neither the company nor its agent had any knowledge of the condition of the title of defendant in error, but it shows affirmatively that the company has done nothing showing that it has waived or intended to waive any of the conditions of the policy, and that it has done nothing which estops it from making the defense that defendant in error was not the sole and unconditional owner of the property insured or the owner in fee of the land on which the building insured was located.

[8] The only remaining question is whether this policy is severable into as many contracts as there are items insured or whether it is a single and indivisible contract. The principles governng the interpretation of insurance contracts are the same as those applicable to other contracts. Cottingham v. National Mutual Church Ins. Co., 290 Ill. 26, 124 N. E. 822;Germania Fire Ins. Co. v. Schild, 69 Ohio St. 136, 68 N. E. 706,100 Am. St. Rep. 663;Dumas v. Northwestern Nat. Ins. Co., 12 App....