Firemen's Ins. Co. v. Kuessner

• Decision Date: 23 November 1896
• Citation: 164 Ill. 275,45 N.E. 540
• Parties: FIREMEN'S INS. CO. v. KUESSNER.
• Court: Illinois Supreme Court

164 Ill. 275

45 N.E. 540

FIREMEN'S INS. CO.

v.KUESSNER.

Supreme Court of Illinois.

Nov. 23, 1896.

Appeal from appellate court, First district.

Action by Ferdinand Kuessner against the Firemen's Insurance Company. Judgment for plaintiff, which was modified by the appellate court (59 Ill. App. 432), and defendant appeals. Affirmed.

U. P. Smith, for appellant.

Nelson Monroe, for appellee.

PHILLIPS, J.

Appellee brought an action on a policy of insurance for $300, of date October 6, 1891, and upon an alleged oral contract for $1,000 insurance on the same property, alleged to have been made March 1, 1892, by the appellant. The property on which insurance was claimed was destroyed by fire about 5 p. m., March 1, 1892; the application for insurance on which the oral contract is alleged having been presented at an earlier hour of that day. A recovery was had in the trial court on the policy and also on the oral contract.

Ferdinand Kuessner was carrying on the business of upholsterer in a small way on Twenty-Second street, in Chicago, and his stock consisted largely of upholstered goods. For several years prior to the 1st day of March, 1892, one Edward Burbank, who had his office with appellant company, had been soliciting the insurance of appellee, and had previous to the 1st day of March, 1892, solicited and placed insurance on appellee's property of $1,000 in the Commercial Insurance Company and $300 in appellant company. On the morning of March 1, 1892, said Burbank called at the store and stated to appellee that his policy of $1,000 in the Commercial Insurance Company had expired, and asked appellee if he did not want to renew the same. Appellee replied he did. Then Burbank asked appellee if he would not like to have the $1,000 placed in the Firemen's Insurance Company, who had at the time a policy of $300, then existing and in force, on the same property. Appellee asked of Burbank if the Firemen's Insurance Company was as good a company as the Commercial. Burbank replied that it was, and a much better company. Appellee then stated to Burbank that he should place the $1,000 with the Firemen's Insurance Company; Burbank stating, at the time, he would bring around the policy and receipt the following morning. This occurrence took place on the morning of March 1, 1892. Burbank proceeded on his way to the office of the Firemen's Insurance Company, and filed an application for said insurance of $1,000, and which was then and there accepted by the company, as claimed by appellee. At about 5 o'clock on the evening of the same day, Kuessner had been in the rear part of his store cleansing the cloth of a lounge there with gasoline, and, when he had got it so cleansed, he and the boy assisting him started to carry the lounge to the forward part of the store, and in passing by a heated stove the same ignited, an explosion occurred, and a fire ensued, which entirely destroyed his property then contained in the store. Early the following morning he went to the office of appellant, and inquired if Burbank had placed the $1,000 of insurance with appellant's company, and was informed that it had been so placed the day before. Appellee then returned to his store, and there met Burbank, who was again on his way to his office at the Firemen's Insurance Company. Kuessner asked Burbank if he had brought with him the policy. Burbank replied that he had not. Kuessner stated to Burbank that he desired the policy of $1,000. Kuessner then went to the office of the company, and asked a clerk to make him out a receipt for the premium, and that he would pay the same. The clerk in charge turned to his books, and made out a receipt for $23, which Kuessner paid; took the receipt, and proceeded again to his store. For a number of days after that time Kuessner made ineffectual efforts with A. C. Harding, the vice president and adjuster of the company, to adjust and determine the amount of loss and damage. After the expiration of several weeks, appellee and appellant each appointed an appraiser, who found and reported that there was a total loss of the entire stock of goods, and the proof of said loss, amounting to $1,813.94, was made and returned to the company on the 28th day of April, 1892, and accepted. These are the material facts with reference to the application for the policy for $1,000 on March 1, 1892, and on which the judgment of the trial court was entered as to the count declaring on the oral contract. On appeal to the appellate court of the First district, the judgment of the trial court was reversed as to the policy for $300, and a remittitur was entered, whereupon there was a judgment of affirmance for the sum of $1,072.22.

The contention of appellant on the trial was that no oral contract of insurance had ever been made, and that no application for insurance had been accepted. By the judgment of the superior court, and the affirmance by the appellate court of the First district, these facts are conclusively determined: That there was a valid oral contract for insurance entered...