Cox v. Ætna Cas. & Sur. Co. of Hartford

• Decision Date: 24 September 1936
• Docket Number: Gen. No. 8916.
• Citation: 3 N.E.2d 964,286 Ill.App. 515
• Parties: COX ET AL. v. ÆTNA CASUALTY & SURETY CO. OF HARTFORD, CONN.
• Court: United States Appellate Court of Illinois

286 Ill.App. 515

3 N.E.2d 964

COX ET AL.

v.ÆTNA CASUALTY & SURETY CO. OF HARTFORD, CONN.

Gen. No. 8916.

Appellate Court of Illinois, Second District.

Sept. 24, 1936.

Appeal from Circuit Court, Rock Island County; J. Paul Califf, Judge.

Action by H. R. Cox and another, doing business under the name and style of Cox Jewelry Company, against the Ætna Casualty & Surety Company of Hartford, Connecticut. From an adverse judgment, the plaintiffs appeal.

Affirmed. Connelly, Walker, Searle & Hubbard, of Rock Island, and Peter R. Ingelson and Chalmers Seymour, both of Moline, for appellants.

Cassidy & Knoblock, of Peoria, and Stafford & Schoede, of Rock Island, for appellee.

DOVE, Justice.

A robbery insurance policy, effective December 18, 1923, issued by the appellee to appellants, forms the basis of this action. The declaration set forth the policy in hæc verba and alleged that while it was in full force and effect the premises of the assured were entered by a person unknown to the plaintiffs who perpetrated a robbery of merchandise belonging to the insured. It was further alleged that the plaintiffs, upon suffering the loss, gave immediate notice thereof to the home office of the defendant in Hartford, Conn., and to the agent of the defendant who countersigned the policy, and that claim for loss arising under the policy was forthwith made in writing, duly subscribed by the assured and certified to in the manner required by the proof of loss form in use by the company, and that said proof of loss was duly delivered to the company by the plaintiffs. The declaration further averred that books of account were kept prior and up to the date of the robbery, by means of which the loss could accurately be determined by the defendant. The declaration then averred full and complete performance of these several requirements by the plaintiffs and further alleged that the value of the merchandise which they lost by said robbery was $30,000.

To this declaration the defendant filed a plea of the general issue and four special pleas. The first special plea averred that the assured did not keep books of account from which the loss could be accurately determined by the defendant. The second special plea averred that the robbery was not established by reasonable evidence. The third special plea averred that the property claimed to have been stolen did not belong to the assured or was not held by the assured in a capacity that would render the assured legally liable to the owner in the event of loss. The fourth special plea averred that there was not a partnership between H. R. Cox and A. B. Cox, but that A. B. Cox traded alone. An additional plea was later filed which averred that the robbery was the result of a conspiracy between H. R. Cox, one of the plaintiffs, and James Hruska to defraud the defendant. Another additional plea averred that Ben Cox was an associate in interest and that he entered into a conspiracy with H. R. Cox and James Hruska to defraud the defendant company. After the issues were made up, a trial was had resulting in a judgment in favor of the plaintiffs for $22,383.71. This judgment was later reversed by this court and the cause remanded for a new trial. Cox v. Ætna Casualty & Surety Co., 248 Ill.App. 209. Upon the case being again tried in the circuit court, the plaintiffs recovered a judgment for $25,041.67, which this court again reversed and again remanded the cause. Cox v. Ætna Casualty & Surety Co., 261 Ill.App. 394. Upon the third trial, the court, at the conclusion of the evidence on the part of the plaintiffs, directed a verdict for the defendant, and upon that verdict judgment was rendered and the record is again brought to this court for review by appeal.

[1] Section D of the policy sued on required appellants, upon discovery of any loss for which claim is made, to give immediate notice thereof to the home office of the company in Hartford, Conn., or to the general agent or manager who countersigned the policy and to the company's local authorized agent and to the public police officials and forward to the company full written details of the nature of the loss. Section F of the policy provided that in the event of a claim for loss, the same shall be made forthwith in writing duly subscribed by the assured and certified to in manner required by the proof of loss form in use by the company. The policy further provided that the company should not be liable unless books and accounts are kept by the insured and the loss can be accurately determined therefrom by the company. The declaration averred that appellants complied with these several requirements and alleged that they gave immediate notice of their loss to the home office of appellee in Hartford, Conn., and to the agent of the company who countersigned the policy, briefly stating particulars and probable amount of loss, and also gave immediate notice thereof to appellee's authorized agent and the public police authorities. The declaration further averred that claim for loss was forthwith made in writing, duly subscribed by appellants and certified to in manner required by proof of loss form in use by appellee, and that said proof of loss was duly delivered to appellee by appellants. It was further averred in the declaration that books and accounts were kept prior and up to the date of the robbery by means of which the said loss can be accurately determined by the defendant.

The policy sued on was offered and admitted in evidence and by its terms it became effective on December 18, 1923, and insured appellants against loss by robbery for one year. The evidence tended to prove that on December 21, 1923, and at the time the policy was issued appellants were conducting a retail jewelry business at 1530 Fifth avenue, Moline, Ill., and on that evening, shortly after 11 o'clock, an unknown person entered appellants' place of business and perpetrated a robbery of merchandise belonging to appellants. Jean A. Pope testified on behalf of appellants to the effect that he was the authorized agent of appellee and solicited H. R. Cox, one of appellants, to take out this policy of insurance. That he did so and on the morning following the robbery and between 7 and 8 o'clock, Pope was notified by H. R. Cox by telephone of the robbery. That Pope in that conversation told Cox that he would notify the company, and he did so. That the general office of the appellee company was in the Insurance Exchange Building, 175 West Jackson Boulevard, Chicago, and it was to this office that Pope telephoned and got in communication with Mr. Brodt, the chief adjuster. This witness identified B. F. Amato's signature appearing on the policy sued on and testified that it was his office in the Insurance Exchange Building to which he telephoned on the morning following the reported robbery. That about 10:30 o'clock a. m. the same morning he called Mr. Cox on the phone and advised him that he had notified the company in Chicago and that a representative of the company would arrive by train about 2:30 o'clock that afternoon and for Cox to be sure and be at the store. That in the afternoon Mr. Swan, an adjuster for appellee, came to Moline and he and Mr. Pope went to appellants' place of business and there had a conversation with Mr. Cox concerning the robbery and the methods employed by Cox in keeping books of account and records of sales and a list of the jewelry purported to have been stolen was given Swan by Cox. The following morning Mr. Pope and Mr. Swan, the adjuster of appellee, went to Mr. Cox's residence and had a further conversation with him about the robbery. The evidence is further that on December 23, 1923, appellants employed H. H. Herbst, an adjuster, to represent them in adjusting this loss and Mr. Herbst testified that on the next day he called at the general offices of appellee in the Insurance Exchange Building in Chicago and that he there informed the girl in the waiting room that he was there to report appellants' loss and was referred to a Mr. Anderson, whose office was in the general office of appellee, and Herbst there had a conversation with Anderson and endeavored to arrange a meeting at Moline in order that appellee might check over and adjust this loss. The evidence further tended to prove that W. H. Holmes was a representative of appellee and that he called upon H. R. Cox in Moline and he was furnished the books and records of appellants and from them he estimated the loss at between $28,000 and $29,000 and so stated to Cox and also to Reynold M. Johnson who testified upon one of the former hearings and whose testimony was read by agreement of the parties at this trial. The evidence also tends to prove that B. F. Secat was an investigator or adjuster for appellee and he called upon Cox and introduced him to one of appellee's present counsel, who prepared a statement which set forth the details of the robbery and a list of the articles of jewelry lost and their values and this statement was signed and sworn to by Cox on January 17, 1924. The evidence is further that the police officials of Moline were notified immediately after the robber left the jewelry store.

It will be observed that the pertinent provisions of the policy with reference to notice did not require such notice to be in writing but did make it incumbent upon appellants to give immediate notice to the home office of the company in Hartford, Conn., or to the general agent or manager who countersigned the policy. It is conceded by counsel for appellants that there is in the record no evidence, which was admitted by the court, tending to prove the giving of notice of the loss to appellee at its home office in Hartford or to Mr. Amato in person, who countersigned the policy, but their counsel insists that the law is that notice need not be given to the executive officer named in the policy, but such notice is sufficient if given and received at the company's place of business...