Egan v. British & Foreign Marine Ins. Co.
| Decision Date | 18 December 1901 |
| Citation | 61 N.E. 1081,193 Ill. 295 |
| Court | Illinois Supreme Court |
| Parties | EGAN v. BRITISH & FOREIGN MARINE INS. CO. |
OPINION TEXT STARTS HERE
Appeal from appellate court, First district.
Action by the British & Foreign Marine Insurance Company against W. M. Egan. From a judgment in the appellant court (88 Ill. App. 552) affirming a judgment for plaintiff, defendant appeals. Affirmed.C. E. Kremer, for appellant.
Church, McMurdy & Sherman, for appellee.
This is an appeal from a judgment of the appellate court for the First district affirming a judgment of the circuit court of Cook county in favor of appellee against appellant, growing out of a marine insurance policy issued by appellee on the interest of appellant in the hull of the propeller Armour, a lake freighter. The Armour was owned in equal parts by appellants, Egan, Capt. R. P. Fitzgerald, and Philip D. Armour, and in September, 1889, by a collision with the steam barge Marion, was sunk in the St. Clair river, having a cargo of 89,000 bushels of corn. The vessel had cost the preceding fall $135,000, and her cargo was worth about $36,000. The cargo was estimated at a total loss. The hull and the cargo were insured by separate and distinct policies. P. D. Armour's interest in the hull was not insured at all, and he was no party to any of the contracts of insurance upon which appellee relies. The interests of appellant and Fitzgerald in the hull were insured by distinct policies to each, so that their insurance on the hull had nothing in common. The cargo was insured in six companies, the total insurance being $35,600, and among them were the policies of appellant for $10,600. Fitzgerald's interest in the hull was insured for $30,000 in five companies, and appellant's interest for $30,000 in five other companies, none of the companies carrying insurance on the hull for Fitzgerald's interest being the same as those carrying insurance on the hull for Engan's interest. Appellant was the agent of the appellee company at the time the insurance was written and at the time of the loss and adjustment.
While the vessel was still under water, and no plans for raising her had been considered, the insurers of the cargo met with Capt. Fitzgerald, who represented the interests of the owners of the vessel, in March, 1890, and adjusted the loss on the cargo. The owners of the vessel had already filed a libel against the Marion for the damages resulting from the collision, and it was agreed between them that the value of the hull and cargo was $174,000, and that as the insurers were to pay $36,000 for the cargo, or practically that, they should have 36/174 of whatever sum should be recovered from the Marion, and the owners would receive 138/174 thereof. The appellee company, being an insurer of the cargo, was, by its general agents, a party to that agreement. After this settlement and agreement the owners of the vessel had her raised, docked, and repaired at a cost of $81,489.03. Of this amount $41,200 was the cost of raising, and $40,289.03 was the total cost of repairs, but from the item of repairswas deducted (one-third new for old) $13,429.61, so that the ‘net particular average and salvage expenses' were adjusted at the sum of $73,343.57. One-third of this amount, or $24,636.68, was the loss of appellant.
In April, 1899, appellant took from appellee a policy on his interest in the hull for $7,500, and this policy was in force at the time of the collision. It was what is known among insurance people as a ‘valued policy,’ and contains the following provision: The policy contained the further provision: ‘It is agreed and understood that, in case of any loss or damage under this policy, the insured, in accepting payment therefor, hereunder, hereby, and by that act assigns and transfers all his, its, or their right to recover for such loss or damage against any person, persons, or corporation to this company, to inure to its benefit, but to the extent only of the amount of such loss or damage and the attendant expenses of recovery paid or incurred by this company; and any act of the insured waiving or transferring, or tending to defeat or decrease, any such right of recovery against any person, persons, or corporation, shall be a cancellation of the liability of this company for or on account of such loss or damage, and the expenses of recovery (if any) paid or incurred by the said company shall be a lien upon, and shall be recoverable against, the said vessel, tackle, apparel, and other furniture,or any part thereof, or against the insured, at the option of the insurer.’
Pending the suit between the owners of the Armour and the Marion, the companies insuring the hull and the owners of the Armour adjusted the hull loss according to their contract, by which appellee paid to appellant $5,543.26, being its proportion of appellant's loss above mentioned, and arrived at by taking appellant's interest in the boat, according to the fixed value, as $33,333,33. He had $30,000 insurance, and by the law of marine insurance was deemed to be an insurer himself of the difference between the amount of insurance and the value of his interest, so that in the computation it was treated as his full interest being insured. As his loss was less than $25,000, by the apportionment appellee was required to pay the amount above stated. This settlement was made November 11, 1890, and payment was made accordingly. On July 8, 1893, the owners of the Armour settled their libel against the Marion with the owners for $37,500, and, after deducting expense of suit, had $18,508.82 left. By the agreement between the insurers of the cargo and the owners of the Armour, $3,929.21 of this amount was paid to them, leaving the net amount to the owners of the Armour $15,061.97, of which sum appellant, as his distributive share, received $5,020.66. When Capt. Fitzgerald sent the distributive share arising from the settlement with the Marion to appellee, going to it as an insurer of the cargo, it replied, calling attention to its rights, under its policy insuring the hull, to be indemnified or subrogated to the rights of appellant against the owners of the Marion. This right appellant denied, and it is this matter that is the subject of this suit. The circuit court found that appellee was entitled to recover $1,129.64, with interest, which together made $1,466.79.
Appellant insists upon three grounds for reversing this case: First, that the insurers of the Armour did not prosecute a suit against the Marion,...
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