Phoenix Ins. Co. v. Pointe
| Decision Date | 05 October 1886 |
| Citation | 8 N.E. 353,118 Ill. 384 |
| Parties | PHOENIX INS. CO. v. LA POINTE. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from appellate court, First district.
Robert Rae and J. S. Miller, for appellant.
Abbott, Oliver & Showalter for appellee.
At the time of issuing the policy of insurance sued upon there was a chattel mortgage upon the property insured to secure $1,000, previously given by appellee to Lewis Hartman, agent, and which remained a lien thereon at the time of the loss. No mention is made of this mortgage in the policy, and it was insisted that the policy was therefore void. To this it was replied that before the acceptance of the premium by appellant company, or issuing the policy, the company had notice of the incumbrance. There was sharp conflict in the evidence as to such notice, the witnesses for appellee testifying that at the time of the application for insurance by appellee, and the agreement to insure, appellee told the agent of appellant company of the mortgage fully, and the agent replied it would make no difference in the company taking the risk. The agents of the company deny this, and testify that the first knowledge they had of any incumbrance on the property was after the fire. There is no contention that the company is not liable if its agent had such notice, and it will therefore be unnecessary to discuss that branch of the case.
It appears that appellant company requires its agents to make report to its home office of all matters material to the risk, upon which the company acts in determining upon its acceptance or rejection of the insurance. At the trial below, as part of the res gestae, as it is contended, appellant company offered in evidence a written report by the agents of this risk made to the company, in which it is represented that the property proposed to be insured was unincumbered, which, on objection, was excluded by the court. This ruling is assigned for error. It is proved, and not denied, that the agreement to insure was made ‘about the last of May,’ and the report mentioned was mailed to the company on the eighteenth day of June; but it does not appear when it was in fact made out by the agent. It is not, however, pretended that it was made at the time of the agreement to insure, or in appellee's presence, or that he had any knowledge of it whatever. It is shown by the testimony of the agent Smith that he made the report, and that he at no time had any conversation with appellee in reference to the insurance until the night of the fire. It is claimed by both Smith and Wilder, appellant's agents, that Wilder alone arranged with appellee for the insurance. Thus it will be seen, not only that this report was not made as part of the transaction with appellee relating to the insurance, but must have been made by Smith from information derived from Wilder, or some other source. It was no part of the res gestae, and was properly excluded.
The plaintiff was permitted, against the objection of defendant, to testify what property other than that covered by the policy was in his building, and destroyed. This is also assigned for error. There is no pretense that any such property was included by the jury in their assessment of damages. The evidence shows, without contradiction, that property covered by the policy in excess of $1,000 was consumed. If the evidence objected to tended to rebut the theory of defense that the insured property was lost by reason of the failure of appellee to use his best endeavor to save the same, it was clearly admissible; but if it did not so tend, it was immaterial, and appellant was not prejudiced thereby.
The next point urged, that appellee did not give notice and make proof of...
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