Home Ins. Co. of New York v. Peoria & P. U. Ry. Co.

• Decision Date: 17 February 1899
• Citation: 178 Ill. 64,52 N.E. 862
• Court: Illinois Supreme Court
• Parties: HOME INS. CO. OF NEW YORK v. PEORIA & P. U. RY. CO.

178 Ill. 64

52 N.E. 862

HOME INS. CO. OF NEW YORK

v.PEORIA & P. U. RY. CO.

Supreme Court of Illinois.

Feb. 17, 1899.

Appeal from appellate court, Second district.

Action by the Peoria & Pekin Union Railway Company against the Home Insurance Company of New York. From a judgment of the appellate court, affirming a judgment for plaintiff (78 Ill. App. 137), defendant appeals. Affirmed.

Samuel E. Hall and Jack & Tichenor, for appellant.

Stevens, Horton & Abbott, for appellee.

BOGGS, J.

The appellee company brought assumpsit on an insurance policy made and delivered by the appellant company, insuring certain cars and other property against loss or damage by fire, and recovered a judgment in the circuit court in the sum of $6,502.90. The judgment was affirmed by the appellate court for the Second district on appeal. This is an appeal to bring the judgment of affirmance into review in this court. In the trial court the cause was submitted to the court without a jury. The judgment was for the value of 38 freight cars which were destroyed by fire while on the tracks of the appellee company during the period covered by the policy.

Appellee, a railway corporation, was the owner of certain railroad yards in and near the city of Peoria, with tracks leading to certain breweries, elevators, etc., and was engaged at the time of the delivery of the policy, and at the time of the destruction of the property by fire, in doing a switching and terminal business in the city of Peoria, receiving the cars of other companies consigned to and from industries and elevators on its tracks, and carrying and storing such cars, for charges to it paid, as well as doing a general railroad business. All of the railroad companies hereinafter mentioned in a quotation from the policy, except the Chicago, Burlington & Quincy Railroad Company, ran their trains into the city of Peoria on the tracks of appellee, and their cars and contents were delivered to appellee on the arrival of such trains, to be by it transferred or stored, as directed, for certain charges to it paid. The railroad of the Chicago, Burlington & Quincy Company connects with that of appellee, and the latter received and carried the former's cars consigned to it, from or to any industry or elevator on appellee's tracks, making a charge therefor. What was known as the ‘Iowa Elevator’ was on the tracks of appellee, and was one of the elevators to and from which it carried cars for other companies. The cars destroyed by fire were brought into the city of Peoria, and delivered to appellee by the companies mentioned in the stipulation, to be transferred or stored, as directed, in the customary and usual manner.

The particular provisions of the policy relied lied upon by the appellee are as follows: ‘(44) $50,000 on freight cars of every description, the property of other roads, firms, individuals, or corporations, for which the assured are or may be liable, while on the line of their road; the limit of loss, if any, on any one freight car not to exceed $500. (45) $20,000 on passenger cars, the property of other roads, firms, individuals, or corporations, for which the assured are or may be liable while on the line of their road; the limit of loss, if any, on any one passenger car not to exceed $2,500. Names of roads owned or operated by the assured on the lines of which the above-described rolling stock is to be covered, viz.: Peoria and Pekin Union Railway; and upon the tracks of the Iowa Elevator Company at Peoria, Ill.; and also on tracks known as Nos. 5 and 6, on property of the Iowa Elevator Company, said tracks owned by the Iowa Central Railway Company and operated under lease by the Peoria and Pekin Union Railway Company; and also on tracks of Toledo, Peoria and Western Railway Company in Peoria.’

The contention is as to the true interpretation of these items, particularly item No. 44, as the cars which were burned were freight cars. The position of the appellant company is that its undertaking, according to the true interpretation of the policy, is not to insure the appellee company against loss or damage to the cars, but only against loss by reason of a liability legally accruing against the appellee company, if any, to account to the owners of the cars for the loss of or damage to the cars by fire; and that, in order to entitle the appellee company to recover, it was essential that the liability of the company to account and pay to the owners of the cars should be made to appear by the proof in the same manner as would be necessary in an action by the owners of the cars against it to recover upon such liability. We do not so construe the policy. The words and phrases employed in insurance policies are chosen by the insurance company. For this reason, and perhaps also for other reasons, it has become the settled rule of construction that the...