Firemen's Ins. Co. v. Horton

• Decision Date: 22 December 1897
• Parties: FIREMEN'S INS. CO. v. HORTON.
• Court: Illinois Supreme Court

170 Ill. 258

48 N.E. 955

FIREMEN'S INS. CO.

v.HORTON.

Supreme Court of Illinois.

Dec. 22, 1897.

Appeal from appellate court, First district.

Action by Lillie Horton against the Firemen's Insurance Company. From a judgment of the appellate court (68 Ill. App. 497) affirming a judgment on a verdict for plaintiff, defendant appeals. Affirmed.

U. P. Smith and Wm. J. Ammen, for appellant.

Moses, Rosenthal & Kennedy, for appellee.

This was an action instituted in the circuit court of Cook county by Lillie Horton to recover from the Firemen's Insurance Company for a loss sustained by her in the destruction by fire of certain household goods on November 25, 1893. The declaration contained two counts, to which the general issue was filed, together with notice by the defendant of thirty-eight special matters which it would offer in defense. Appellee held a policy issued by the Firemen's Insurance Company upon her property, which was solicited from her by one Charles E. Smith. At the time the policy was issued there was a chattel mortgage upon a portion of the household goods for $81.60, but, a part having been paid thereon, the amount due at the time of the fire was about $50, which still stood unreleased of record. That portion of the property which was incumbered by the mortgage had cost about $250. The policy of insurance held by the plaintiff provided: ‘If the interest of the insured in the property be otherwise than an absolute fee-simple title, or if any other person or persons have any interest whatever in the property described, whether it be real estate or personal property, or if the building insured or containing the property insured by this policy stands on leased ground, or if there be a mortgage or other incumbrance thereon, whether inquired about or not, it must be so represented to the company, and so expressed in the written part of this policy; otherwise policy shall be void.’ The fact of the existence of the mortgage was made known to Smith, who solicited the insurance, but no mention was made by him of it in the application or policy. It was a controverted question of fact whether Smith was the agent of the appellant company. Upon a trial in the circuit court of Cook county the jury returned a verdict against appellant for the sum of $1,522.95, upon which judgment was rendered, and on appeal to the appellate court this judgment was affirmed. From this judgment of affirmance this appeal is prosecuted.PHILLIPS, C. J. (after stating the facts).

The particular ground of defense relied upon by appellant in this case, as reason why appellee is not entitled to recover under her policy for the loss of the property destroyed by fire, is that at the time application for insurance was made, and the policy issued, there was a chattel mortgage on a portion of the furniture,...