Niagara Fire Ins. Co. v. Forehand

Decision Date08 November 1897
PartiesNIAGARA FIRE INS. CO. v. FOREHAND.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Appeal from appellate court, Fourth district.

Action by Thomas D. Forehand against the Niagara Fire Insurance Company to recover upon a fire insurance policy. A judgment for plaintiff was affirmed by the appellate court (58 Ill. App. 161), and defendant appeals. Reversed.

Courtney & Helm, for appellant.

Spann & Sheridan, for appellee.

This was a suit brought in the circuit court of Massac county by appellee against the Niagara Fire Insurance Company to recover for the loss of a stock of merchandise, which it is alleged was covered by a policy of insurance issued by appellant. The declaration was in the usual form, setting out the policy in haec verba. Appellant filed a plea of general issue, and, in addition thereto, special pleas, setting up the following defenses: (1) A failure to comply with the provision of the policy which was as follows: ‘It is expressly warranted that the insured shall take an inventory of the stock hereby covered, at least once a year, and shall keep books of account correctly detailing purchases and sales of said stock, and shall keep all inventories and books securely locked in a fireproof safe or other place secured from fire in said store during the hours said store is closed for business. Failure to observe the above conditions shall render a forfeiture of all claims under this policy.’ The plea alleges that a failure on the part of the insured to comply with this provision was intentional, and for the purpose of defrauding appellant. (2) That plaintiff, in making his proof of loss, knowingly, willfully, and corruptly swore falsely in stating there was no incumbrance on said property. (3) That, after the fire on which the loss was based, the plaintiff refused on request to produce his books for inspection, as required by the policy.’ A demurrer was interposed to these pleas, both general and special; special cause of demurrer setting forth as to the first plea that it did not allege one year had elapsed after the issuing of the policy before the fire occurred, and that the insured had a full year in which to take such inventory. Demurrer to second plea insisted that the matter therein alleged as to the false swearing was not material, under the provisions of the policy; that no forfeitures were declared by the defendant on account of the matters set up in these pleas; and that they amount to the general issue. The demurrer was sustained, on which ruling appellant assigns error. Judgment was rendered in the circuit court of Massac county against the defendant for $1,000. On appeal to the appellate court of the Fourth district this judgment was affirmed, and on appeal the case is presented to this court.

PHILLIPS, C. J. (after stating the facts).

It is urged by appellee that this court cannot consider this appeal, for the reason that no motion for new trial, together with an exception of defendant to the overruling thereof, is shown in the record. No motion for new trial is necessary where the case has been tried by the court without a jury, and in such case it is only necessary that the record show an exception to the judgment. Railroad Co. v. O'Keefe, 154 Ill. 508, 39 N. E. 606;Insurance Co. v. Peck, 126 Ill. 493, 18 N. E. 752. The only question therefore properly presented for the consideration of this court is whether or not there was error in the action of the trial court in sustaining the demurrer to the special pleas filed by the defendant. One of the provisions of the policy was that the insured should keep books of account, correctly detailing purchases and sales of stock, and should keep all inventories and books securely locked in a fireproof safe or other place secure from fire in his store during the hours when the store was closed for business; and it was further provided that a failure to observe the above conditions should render a forfeiture of all claims under the policy. The provision is a reasonable one; and, appellee having contracted by his policy of insurance to observe it, it was such provision as was necessary to be fulfilled by him, and the failure so to do, with an intention to defraud the insurance company, would result in the forfeiture of his contract of insurance. In...

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17 cases
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    ......234 Ill. 179, 84 N.E. 873; Jacobson v. Liverpool & London & Globe Ins. Co., 231 Ill. 61, 83 N.E. 95; Niagara Fire Ins. Co. v. Forehand, 169 Ill. ......
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