Milwaukee Mechanics' Ins. Co. v. Schallman

• Decision Date: 20 December 1900
• Citation: 188 Ill. 213,59 N.E. 12
• Parties: MILWAUKEE MECHANICS' INS. CO. v. SCHALLMAN.
• Court: Illinois Supreme Court

188 Ill. 213

59 N.E. 12

MILWAUKEE MECHANICS' INS. CO.

v.SCHALLMAN.

Supreme Court of Illinois.

Dec. 20, 1900.

Appeal from appellate court, First district.

Action by Max Schallman against the Milwaukee Mechanics' Insurance Company. From a judgment of the appellate court (90) Ill. App. 280) affirming a judgment for plaintiff, defendant appeals. Affirmed.R. W. Barger (E. H. Hicks, of counsel), for appellant.

Felsenthal & Foreman, for appellee.

This is an action of assumpsit, begun on February 19, 1898, upon a fire insurance policy issued by appellant to the appellee, Max Schallman. The policy is the standard form, and insures the property of appellee against loss by fire to the amount of $1,000 from October 6, 1897, to October 6, 1898. The property insured was a stock of merchandise in the building known as ‘124 Franklin Street’ in Chicago. The praecipe was filed in the superior court of Cook county on February 19, 1898, and the summons was issued from that court on February 19, 1898. The summons was served on February 24, 1898. The declaration was filed on February 25, 1898. The declaration recites the issuance of the policy, and sets it forth in haec verba. It alleges that on October 12, 1897, appellee, Max Schallman, was the owner of a stock of goods and fixtures valued at $15,187.48, in the building aforesaid, and that the property so insured was destroyed by fire on October 12, 1897; that notice was given to the appellant of the fire and proofs of loss were furnished to it on that day; and that appellee duly performed all the acts and things required of him by the policy, but the appellant failed to pay, etc. On March 8, 1898, a plea of the general issue was filed to the declaration. On February 28, 1899, the cause came on for trial before the court and a jury, and before the beginning of the trial the appellee, by leave of court, filed an amended declaration, alleging that the defendants waived the performance of and a compliance with that part of the policy requiring the ascertainment or estimate of loss by the plaintiff and the defendants, and, in case of their differing, an appraisal thereof by appraisers. It was ordered by the court that the plea of the general issue already filed by the defendants should stand as a plea to the declaration as amended. The trial of the cause resulted in a verdict for $1,000 in favor of appellee. Before the return of the verdict, instructions were given to the jury on behalf of both the plaintiff and defendants below. At the close of plaintiff's evidence, the defendants requested the court to instruct the jury that the plaintiff was not entitled to recover, and that they should return a verdict for the defendants; but the court overruled the motion to give said peremptory instruction, and exception thereto was taken by the defendants. Before argument to the jury was commenced, the defendants asked the court to instruct the jury that the plaintiff was not entitled to recover, and that they should return their verdict for the defendants; but this instruction the court refused to give to the jury, and to such refusal the defendants then and there duly excepted. At the time of giving the instructions asked for by the defendants the court, at the request of the defendants, submitted certain special interrogatories to the jury, to which the jury, with their general verdict, returned answers. By their answers to these interrogatories the jury specially found that the cash value of the goods entirely destroyed by the fire in question, not including tables, shelving, and other fixtures, was $13,532.88; that they believed from the evidence that the actual damage by reason of the said fire to the goods of the plaintiff not wholly destroyed (not including tables, shelving, or other fixtures), was $1,843.32; that they believed from the evidence that the plaintiff, in his affidavit of loss rendered to the defendants, claimed the amount of his loss and damage by fire to the goods in question (not including tables, shelving, or other fixtures) was $15,376.20; and that they did not believe from the evidence that the plaintiff, in his affidavit of loss and his claim against the defendants, knowingly and intentionally stated and claimed the loss and damage by the fire in question to have been materially greater than he knew such loss and damage actually were. A motion for new trial was made by the defendants and overruled, and on the same day upon which the said motion for new trial was overruled, to wit, May 6, 1899, the defendants moved the court to arrest the judgment upon the following ground, to wit: ‘That the declaration is not sufficient in law, and that the facts therein stated do not constitute any cause of action.’ While said motion in arrest of judgment was under advisement by the court, and on May 8, 1899, the plaintiff asked leave of the court to amend his declaration, to the granting of which leave by the court the defendants then and there objected, but their objection was overruled, and leave was granted to file instanter said amendment to the declaration, to all of which the defendants then and there duly excepted. Upon the filing of the amendment the defendants at once asked leave of the court to plead to the amendment and to the declaration as amended, and demanded a trial by a jury upon the declaration as amended, which demand was denied by the court; and to the denial thereof the defendants then and there excepted. Thereupon the court overruled the motion of the defendants in arrest of judgment, to which the defendants then and there duly excepted. Thereupon the court rendered judgment upon the verdict in favor of plaintiff against the defendants for $1,000, with costs, and ordered that execution issue therefor. An appeal was prayed from this judgment to the appellate court, where the judgment has been affirmed. The present appeal is prosecuted from such judgment of affirmance. The declaration, in the last sentence thereof, made the following allegation: ‘Yet the said defendants, although often requested, and though more than sixty days have elapsed since the delivery of said proofs of loss, have not paid the said money, or any part thereof, to the plaintiff, but to pay the same have neglected and refused, to the damage of the plaintiff of $1,500, and therefore he brings suit,’ etc. The amendment which the court allowed the plaintiff to make to the declaration after the motion in arrest of judgment had been made, but before it was decided, was as follows: The insertion therein before the words, ‘yet the said defendants, although often requested,’ etc., of the following words, to wit: ‘And plaintiff alleges that the delivery of said proofs of loss as aforesaid was more than sixty days before the commencement of this action.’

MAGRUDER, J. (after stating the facts).

1. The first point presented by counsel for the appellant in their argument is that the trial court erred in refusing to the defendants below the right to plead to the declaration as amended after verdict. The policy of insurance upon which this suit is brought contains the following provisions, to wit: ‘The amount of loss or damage having been thus determined, the sum for which this company is liable pursuant to this policy shall be payable sixty days after due notice, ascertainment, estimate, and satisfactory proof of the loss have been received by this company in accordance with the terms of this policy. * * * And the loss shall not become payable until sixty days after the notice, ascertainment, estimate, and satisfactory proof of the loss herein required have been received by this company,’ etc. The declaration, as originally filed, is claimed to have been defective, because it did not aver that 60 days had elapsed after the delivery of the proofs of loss to the appellant and prior to the commencement of the action. The allegation in the declaration, which is expressed in the following words, ‘and though more than sixty days have elapsed since the delivery of said proofs of loss,’ is said to mean that more than 60 days elapsed after the delivery of said proofs of loss before the filing of the declaration. In other words, the defect is alleged to consist in averring that 60 days elapsed between the delivery of the proofs of loss to the appellant and the filing of the declaration. It is said that the declaration should have averred that 60 days elapsed between the delivery of the proofs of loss and the commencement of the suit. The amendment which the court allowed to be filed cured this defect. Did the court err in allowing the amendment to be made at the time when it was made, and in refusing to allow the appellant to file additional pleas thereto? Section 23 of the practice act provides that, ‘at any time before final judgment in a civil suit, amendments may be allowed * * * in any matter, either of form or substance, in any process, pleading or proceeding which may enable the plaintiff to sustain the action for the claim for which it was intended to be brought or the defendant to make a legal defense.’ 3 Starr & C. Ann. St. (2d Ed.) p. 3000. Section 1 of the act in regard to amendments and jeofails provides: ‘That the court in which an action is pending shall have power to permit amendments in any process, pleading or proceeding in such action, either in form or substance, for the furtherance of justice, on such terms as shall be just, at any time before judgment rendered therein.’ 1 Starr & C. Ann. St. (2d Ed.) p. 375. The amendment to the declaration here, although made after verdict, was made before the rendition of final judgment in the case. Therefore, under the very liberal statutory provisions above quoted in regard to amendments, the court unquestionably had power to permit the amendment in question to be made. In view of these statutory provisions, this court, in a number of decisions, has sanctioned amendments to declarations during the pendency or after the overruling...