Phenix Ins. Co. v. Stocks

• Decision Date: 19 June 1893
• Citation: 149 Ill. 319,36 N.E. 408
• Parties: PHENIX INS. CO. v. STOCKS et al.
• Court: Illinois Supreme Court

149 Ill. 319

36 N.E. 408

PHENIX INS. CO.

v.STOCKS et al.¹

Supreme Court of Illinois.

June 19, 1893.²

Appeal from appellate court, fourth district; George W. Young, Judge.

Assumpsit by John Stocks and Emma Stocks against the Phenix Insurance Company upon a policy of fire insurance. Plaintiffs obtained judgment, which was affirmed by the appellate court. Defendant appeals. Affirmed.

W. W. Clemens, for appellant.

Duncan & Rhea, for appellees.

The other facts fully appear in the following statement by SHOPE, J.:

On the 1st day of December, 1887, the appellant insurance company issued its policy to appellees, insuring their dwelling house to the amount of $800, and their furniture, wearing apparel, books, piano, etc., in the sum of $400, against loss or damage by fire for the period of five years from noon of that day. The premium for the term was paid in advance. The building and its contents were burned in the afternoon of May 17, 1890, during the continuance of said policy in force. The amount of the policy not having been paid, this suit was brought thereon, October 3, 1890, in the circuit court of Williamson county. A trial resulted in verdict and judgment for the full amount of the policy, from which the company appealed to the appellate court, where the judgment was affirmed; and the insurance company (defendant) prosecutes this further appeal.

SHOPE, J., (after stating the facts.)

It is insisted that the court erred in not continuing the cause, upon the motion of the defendant, because a copy of the application upon which the policy issued was not filed with the declaration 10 days before the first day of the term. The policy sued on was set out in haec verba in the first count of the declaration. A demurrer having been sustained to the declaration, it was amended, and a copy of the application filed with the amendment. The policy being set out in the declaration was a sufficient compliance with the statute. Benjamin v. Delahay, 2 Scam. 574. The policy was the instrument sued on, within the meaning of the statute, and it was unnecessary for the plaintiff to attach a copy of the application. Herron v. Insurance Co., 28 Ill. 235;Insurance Co. v. Stanton, 57 Ill. 354;Grange Mill Co. v. Western Assur. Co., 118 Ill. 396, 9 N. E. 274;Insurance Co. v. Rogers, 119 Ill. 474-485, 10 N. E. 242; May, Ins. (2d Ed.) § 183. Presumably, the application, if made the basis of the insurance, was delivered to, and retained by, the insurer, and would not be in possession of the assured.

2. It is also urged that there was error in the refusal of the court to grant leave to the defendant to file a special plea after the trial had been entered upon, and the plaintiffs' case practically closed. This plea, after reciting the stipulation of the policy that, if an application was made prior to the issuing of the policy, the same should be considered a part of the contract and a warranty by the assured, and any false representations by the assured, etc., would avoid the policy; and that if the interest of the assured in the property should be other than an absolute. fee-simple title, or if any other person had any interest in the property, it should be so represented to the company, and so expressed in the written part of the policy, otherwise the policy should be void; and that all fraud or attempted fraud, by false swearing or otherwise, should forfeit all claim on the defendant, and be a complete bar, etc.,-then alleges that there was an application upon which the policy sued on was issued, signed by the plaintiff John Stocks, in which application it was untruly and fraudulently represented that the building insured was the property in fee simple of the assured, etc., and that the building was in fact not the property in fee simple of the assured, or either of them, at the time of the issuance of said policy, nor since, etc. It seems to be well settled in this state, whatever may be the rule elsewhere, that the plaintiff is required only to allege and prove such matters as appear to be conditions precedent in the policy; and although the application is referred to in the policy, and made part of it, the matters contained in the application only, whether construed to be warrantiesor representations, are matters of defense. Thus, in Herron v. Insurance Co., supra, it is said: ‘The objection that the original application for insurance, being a condition precedent, is not set out, we think is not sound. We do not think the assured is bound to set out and prove the truth of his representations. They are subject to attack by the defendant.’ In Insurance Co. v. Robertson, 59 Ill. 126, it is said: ‘Conceding that the representations contained in the application for the policy were made warranties by the reference to them in the policy, still we cannot say they were untrue. * * * Appellee was not bound to set out the application and prove its truth. This paper must have been in the custody of appellant. The company might have introduced it, and proved its representations to be false.’ See, also, Insurance Co. v. Hogan, 80 Ill. 40;Insurance Co. v. Stanton, 57 Ill. 354. In Insurance Co. v. Rogers, 119 Ill. 485, 10 N. E. 242, it is said: ‘The rule seems to be well settled in this state that it is not necessary for the plaintiff, in an action on the policy, to either allege or prove such matters as appear in the application only. To be availed of as a defense, without regard to whether they are warranties, or representations merely, their falsity or breach by the assured must be set up and proved by the defendant as matter of defense.’ It seems clear that had the plea been presented in apt time, the right of defendant to file it would have been unquestionable. When presented, however, and leave was asked to file it, the application was addressed to the discretion of the trial court. The twenty-fourth section of the practice act provides: ‘At any time before final judgment in a civil suit, amendments may be allowed on such terms as are just and reasonable * * * 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.’ While a most liberal construction has been given this statute, it has never been held to give the defendant the absolute right to interpose defenses, after having once pleaded, without leave of the court, or as being mandatory upon the court to grant leave upon the mere application of the party. On the contrary, it has been repeatedly held that the defendant must show diligence, and some reasonable excuse for not having presented his defense prior to the calling of the case for trial. Where this is shown, it would be the duty of the court, in the exercise of a sound discretion, to allow the defense to be interposed. Lincoln v. McLaughlin, 74 Ill. 11;Haas v. Stenger, 75 Ill. 597;Millikin v. Jones, 77 Ill. 372;Misch v. McAlpine, 78 Ill. 507. The application was here unaccompanied by any showing that the defendant did not know, or by the exercise of reasonable diligence might not have known, every fact set up by the plea before the issue was joined and the trial entered upon, nor was there anything in the record showing such want of knowledge. Moreover, the court held that the proof that might have been offered under this plea was admissible under the general issue, and the defendant had the full benefit, both in the evidence and instructions of the court, of every right it could have claimed under the plea. If, therefore, it can be said that the court erred in refusing the leave, the defendant was in no wise prejudiced.

3. Treating the evidence as properly before the jury under the general issue, it is insisted that there was a breach of the ninth condition of the policy, the substance of which is set out in the recitals of the foregoing special plea. In answer to the question in the application, ‘What is the title? Answer particularly,’-occur the words, ‘Fee simple,’ and the policy provides that if the title is not correctly set forth, as we have seen, the policy will be void. There was evidence tending to show that this answer in the application was not the answer of the assured, but of the agent of the insurer. In answer to the question, when read to him by the agent, John Stocks, who alone made the application, replied: ‘My wife has a warranty deed from her father to the land.’ Thereupon the agent wrote in the application the words, ‘Fee simple.’ This evidence is substantially uncontradicted, except that the agent testifies that he concluded, from the statement that Mrs. Stocks had a warranty deed, that the title was in her in fee simple, and that, as he wrote the answer, he said: ‘Fee simple,’ and his recollection is that Mr. Stocks replied, ‘I guess so.’ It was shown that the title claimed by appellees was under a warranty deed from the father of Mrs. Stocks to her and ‘her bodily heirs.’ The good faith of the assured in representing the title is not questioned. It is shown, and not controverted, that, even if the testimony of the agent as to what Stocks replied was credited, Stocks did not know what was meant by ‘Fee simple,’ or that the deed did not convey the absolute title. But it is insisted that the question of good faith is immaterial, as it would be if the representation of the title be treated as a warranty by the assured. The question of fact as to whether the answer was the act of the assured or that of the agent of appellant was fairly submitted to the jury by the instructions. Quoting from the abstract prepared by appellant's counsel: ‘The second instruction is to the effect that if defendant's agent, in taking the application, was informed, by the circumstances, of plaintiffs' title, from which they could, upon inquiry, have learned its nature, and, without specifying the true answer of the plaintiff in the application, concluded they...