Commercial Ins. Co. v. Bank
| Decision Date | 30 September 1871 |
| Citation | 1871 WL 8301,61 Ill. 482,14 Am.Rep. 73 |
| Parties | COMMERCIAL INSURANCE COMPANYv.TREASURY BANK. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Chicago; the Hon. JOHN G. ROGERS, Judge, presiding.
Messrs. DENT & BLACK, for the appellant.
Messrs. WAITE & CLARKE, for the appellee.
The declaration sets out, in hæc verba, a copy of a policy of insurance payable to Boyington, Cash & Wilder, on the back of which is the following indorsement:
There is no averment in the declaration that this indorsement was made by the company, or that the assured requested it, or consented to it.
Objection was made to the introduction of the policy, when offered, and a motion in arrest of judgment was also made.
The pleader has merely averred, in the declaration, that the insurance company executed to Boyington, Cash & Wilder a certain policy in writing, of the words and figures following,--and then follows the policy, dated August 10, 1866. On the back is the indorsement before referred to, of a subsequent date, but the declaration contains no averment whatever in reference to the indorsement.
It was essential to this action that the Treasury Bank should have a right to the policy. This it can not have, without the assent of the company and the assured. They must act in effecting the indorsement. Without some allegation in the pleading, the mere indorsement proves nothing. No proof would be required in regard to it.
The averment that the following policy was executed to the party originally assured, does not, in the remotest degree, connect the bank with the policy. This averment has reference solely to the original policy, and not to the indorsement; because the execution of the latter, so far as the pleadings show, was long subsequent to the execution of the former.
The mere indorsement, then, without apt averments to show that it was a part of the policy, and the manner in which it became such, conferred no right upon the bank to maintain the suit.
Is the omission to state the cause of action cured by verdict?
The rule is, that, if the plaintiff totally omit to state his title or cause of action, it need not be proved at the trial, and therefore there is no room for presumption. Rushton v. Aspenwall, Doug. 679.
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