Lumbermen's Mut. Ins. Co. of Chicago v. Bell
| Citation | 45 N.E. 130,166 Ill. 400 |
| Parties | LUMBERMEN'S MUT. INS. CO. OF CHICAGO v. BELL. |
| Decision Date | 20 November 1896 |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from appellate court, Fourth district.
Action by Eliza J. Bell, executrix of James Bell, deceased, against the Lumbermen's Mutual Insurance Company of Chicago, to recover on a policy of fire insurance. A judgment for plaintiff was affirmed by the appellate court (63 Ill. App. 67), and defendant appeals. Affirmed.
Myron H. Beach and Dodd & Pickrell, for appellant.
Green & Gilbert, for appellee.
This is an appeal from the appellate court of the Fourth district. Eliza J. Bell, plaintiff below, as executrix of the last will of her deceased husband, James Bell, was operating a sawmill at Ullin, in this state. By the will of her husband, she was given all his property, and directed to continue the mill business as he had done in his lifetime. One H. C. Candee was an insurance agent, having his office at Cairo, and represented several different companies. In some of these the mill property in question had for several years been insured by James Bell, through Candee. Candee had also, from time to time, procured insurance upon the property in other companies, when not able to get it from those he represented, which he did through Iott & Son, insurance brokers of Chicago. This course of dealing was continued by Mrs. Bell after the death of her husband. She, by her son George, applied to Candee for the policy in suit, and, not being able to place it in his own companies, he applied to Iott & Son to obtain it. The application was made for the ‘estate of James Bell,’ as owner. Iott & Son procured the policy from appellant, but by their mistake it was issued to ‘James Bell.’ This policy was afterwards renewed, the same mistake being continued in the renewal, and not discovered until after the loss. Both the original and renewal policies were delivered by appellant to Iott & Son, and by them to Candee, who gave it to Mrs. Bell, who held it, paying all premiums thereon, until June 4, 1890, when the property was destroyed by fire. Proofs of the loss were made by her agent, George T. Adams, superintendent in charge of the mills, she being absent from the state. The company refused to pay the loss on the ground that the policy was void when issued, because written in the name of James Bell, who was then dead. This suit was brought in the circuit court of Union county, where judgment was rendered in favor of appellee. That judgment has been affirmed by the appellate court. 63 Ill. App. 67.
It was insisted by defendant upon the trial of the case that plaintiff was not entitled to recover because she had failed to make the proper proofs of loss; the principal objection being that they were made by an agent, and not by the assured herself. Where it sufficiently appears that the insured was not in a position to make the proofs of loss in person, it may be legally done by an agent. Insurance Co. v. Grunert, 112 Ill. 68. Besides this, defendant having based its refusal to pay the policy upon the distinct ground that it was void when issued, because James Bell was then dead, objections to the proofs of loss were thereby waived. Insurance Co. v. Cary, 83 Ill. 453.
The only defense going to the merits of the cause was that the policy was invalid because it insured the property in question as being owned by James Bell, who was then dead; and the validity of that defense rests upon the question as to whether Iott & Son, through whose mistake it was so issued, should be treated as the agents of the defendant or not. This question, so far as it is one of fact, has been settled adversely to appellant by the verdict of the jury and judgment of the appellate court. It is insisted, however, that the jury was erroneously instructed upon this branch of the case, by the third, sixth, and ninth instructions given at the instance of the plaintiff. The third is to the effect that the fact of James Bell's death would not necessarily bar the plaintiff's right of recovery, but if she was in control of the property, carrying on the business in the name of James Bell, and was the real person insured, she could maintain the action upon the policy. There was no error in this instruction. Where an instrument, by accident, mistake, or design, is made payable to a person by a wrong name, it is not necessary for...
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