Palmer v. Bull Dog Auto Ins. Ass'n

• Citation: 294 Ill. 287,128 N.E. 499
• Decision Date: 23 October 1920
• Docket Number: No. 13427.,13427.
• Parties: PALMER et al. v. BULL DOG AUTO INS. ASS'N.
• Court: Supreme Court of Illinois

294 Ill. 287

128 N.E. 499

PALMER et al.

v.BULL DOG AUTO INS. ASS'N.

No. 13427.

Supreme Court of Illinois.

Oct. 23, 1920.

Action by Earl R. Palmer and another against the Bull Dog Auto Insurance Association. Judgment for defendant on a directed verdict, and denial of a new trial was affirmed on error by the Appellate Court, and plaintiffs appeal under a certificate of importance.

Affirmed.Appeal from Appellate Court, Second District, on Error to Circuit Court, Peoria County; Charles V. Miles, Judge.

Arthur Keithley, of Peoria, for appellants.

Clarence W. Heyl and Harry C. Heyl, both of Peoria, for appellee.

CARTER, J.

Appellants, Earl R. Palmer and his stepfather, Dr. George Limmer, brought suit against the Bull Dog Auto Insurance Association in the circuit court of Peoria county, declaring specially upon an insurance policy insuring them against loss or damage as to an automobile owned by them jointly, from various causes, including theft. The cause was tried on the last amended declaration and a plea of the general issue, and a stipulation that all defenses of law and fact might be proven under said plea. The first jury trial resulted in a verdict for plaintiffs for $500. Each side moved for a new trial, which was granted, and the cause was tried before another judge and jury. At the close of all the evidence the court directed a verdict for the defendant. The plaintiffs moved for a new trial for the sole reason that the court erred in directing a verdict. That motion was denied, and judgment entered. Appellants sued out a writ of error from the Appellate Court for the Second District, and the judgment of the trial court was there affirmed. That court granted a certificate of importance, and the cause is here on appeal.

Appellee is a voluntary association of automobile owners, which writes insurance against loss by fire, collision, or theft. Each member is called a subscriber and signs a lengthy contract of some 55 paragraphs. The principal managing officer is called the attorney in fact, and he is assisted in his duties by an advisory committee of five. The contract of insurance requires that the applicant give the name and description of his auto and Lother particulars. It contains certain provisions as to the rate of insurance and the amount of premium, and provides that the association will not issue a policy until the property to be insured is first passed upon by an inspector, and the auto owner accepted by the attorney in fact as a man of good moral character and a suitable person to be insured, and that the attorney in fact may afterwards cancel the certificate of insurance if he considers that the subscriber has become an undesirable subscriber. Each subscriber pays a membership fee as well as an annual fee, and the losses are paid by assessments made from time to time pro rata, according to the amount of the insurance each subscriber carries. If any subscriber sells or disposes of an auto covered by his policy of insurance and desires to have the policy cover one subsequently acquired, he must give notice to the attorney in fact, describing the new automobile and paying a fee, ‘when a contract, to be attached to the subscriber's certificate, will be issued which will cover as fully the insurance or loss on the ‘new’ automobile as was covered on the automobile in the original certificate, provided such ‘new’ automobile is acceptable to the attorney in fact.' Assessments are required to be paid within 30 days after notice, and, if not paid on the forty-fifth day after such notice, the subscriber and his policy stand suspended.

On December 18, 1916, appellants obtained a policy insuring their Buick car for $650. They sold that car in June, 1917, and shortly thereafter purchased a Chandler car. An assessment of $5.87 was levied upon them on June 1, 1917, and they were notified of that fact. Appellants lived in Peoria and the attorney in fact of the auto insurance association lived in Washington, Tazewell county, about 12 miles distant. Dr. Limmer and his office stenographer testified that about 3 o'clock on August 7, 1917, the doctor mailed a letter addressed to the attorney in fact at Washington, Ill., in which he inclosed a check for $7 to pay the past-due assessment of $5.87 and to pay the fee of $1 for the transfer, and asked therein that the insurance be changed from the Buick, formerly insured, to the new six-cylinder Chandler then owned by appellants. The testimony also shows that about 7 o'clock p. m. on that same day one of the appellants left the Chandler car in front of a bank building in Peoria, and when he came back, about 9 o'clock p. m., the car had been stolen, and has never since been recovered. The attorney in fact received the application on August 8, approved it, and issued a rider to be attached to the original contract of insurance, including loss by theft, for $1,116.80, and mailed the same to appellants, and they attached this rider to the old policy. On the same day, August 8, the appellants mailed a notice to the attorney in fact of theft of the car, and that notice was received by the attorney in fact on August 9. Acting for the association, he refused to pay for the loss, and this suit was brought to recover therefor.

Counsel for appellants argues that, because of the provisions of the policy here under consideration providing for the substitution of cars upon the payment of a certain fee, appellants bought the privilege, when they procured the policy, to have said transfer at any time they requested it, and that by the doctrine of relation such transfer must necessarily relate back to the time it was applied for, in this case 3 o'clock p. m. August 7, which was from four to six hours before the car was stolen; that there was no option or choice in the matter on the part of the insurance association after the application was received by it, with the money for the back assessment and the fee for the transfer, and that the acceptance of the assessment...