Pollock v. Connecticut Fire Ins. Co. of Hartford

• Decision Date: 06 February 1936
• Docket Number: No. 23237.,23237.
• Parties: POLLOCK v. CONNECTICUT FIRE INS. CO. OF HARTFORD.
• Court: Illinois Supreme Court

362 Ill. 313

199 N.E. 816

POLLOCK

v.CONNECTICUT FIRE INS. CO. OF HARTFORD.

No. 23237.

Supreme Court of Illinois.

Dec. 19, 1935.

Rehearing Denied Feb. 6, 1936.

Action by M. D. Pollock against the Connecticut Fire Insurance Company of Hartford. From a judgment (281 Ill.App. 305) affirming a judgment, notwithstanding the verdict, for defendant, plaintiff appeals on a certificate of importance from the Appellate Court.

Affirmed.

Appeal from Appellate Court for the Third District, on Appeal from Circuit Court, Macon County; Charles Y. Miller, Judge.

Redmon, Redmon & Bodman, of Decatur, for appellant.

Myers & Snerly, of Chicago, and Charles F. Evans, of Decatur, for appellee.

SHAW, Justice.

M. D. Pollock and his wife, Emma Miles Pollock, as joint tenants, owned certain real estate in Decatur which was improved with a dwelling house and occupied by them as a homestead. Title in joint tenancy had been acquired by them by warranty deed December 27, 1922, and that title continued during all of the times herein referred to. In 1927 Pollock obtained a policy of insurance from the appellee, covering, among other hazards, loss or damage by lightning. The record is silent as to anything concerning the issuance of this policy. In October of 1930 a renewal of this policy for a new and extended term was mailed to the appellant, received by him, and later paid for. The loss which is the subject-matter of this suit is claimed to have occurred on May 20, 1933, within the term of the policy, and to have been caused by lightning. It was admitted on the trial that there was other insurance on the risk, so that the appellee's liability, if any, was two-thirds of the actual loss. A suit was started in the circuit court of Macon county upon this policy, which resulted in a verdict for the plaintiff in the sum of $1,140.77. On motion of the appellee for judgment notwithstanding the verdict, a final judgment for the defendant (appellee) was entered, and on appeal to the Appellate Court for the Third District this judgment has been affirmed. The cause comes here for further review on a certificate of importance from the Appellate Court.

The question for determination, and which is decisive of the litigation, is the validity, applicability, and enforceability of the following clauses in the policy: ‘This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void * * * if the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance be a building on ground not owned by the insured in fee simple. * * * This entire policy shall be void if the insured has concealed or misrepresented in writing or otherwise any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein.’

Other questions have been raised during the course of the litigation, but they are either determined, so far as this court is concerned, by the verdict of the jury, the rules of law limiting our review, or by a failure to argue, thus waiving them. Thus it is determined that the loss actually resulted from lightning; there being evidence to sustain that fact. It is determined that there was no actual knowledge on the part of the insurer prior to the issuance of the policy as to the condition of the title; there being no affirmative evidence on that point. A further question raised in and determined by the Appellate Court as to a return of the premium paid is not argued in the briefs in this court, and is therefore waived. We are thus limited to a determination of the legal effect of the clauses quoted; it being shown by the evidence and admitted by stipulation that the title to the property was at all times as above stated.

The appellant's argument is not divided into paragraphs, but in substance his contentions are as follows: That the provision as to sole and unconditional ownership was waived because the policy was issued without asking any questions and without any representations being made; that the appellant must be presumed to have known the condition of the title because the appellant's wife occupied the premises with him and the deed was on record, and because of the four unities which are characteristic of joint tenancies-those of time, title, interest, and possession-it being urged that each joint tenant has the entire title, interest, and possession of the premises subject to the rights of the other joint tenants. It is not urged, however, that such title is sole and unconditional.

Some of the cases relied upon by the appellant were reviewed by this court in Fray v. National Fire Ins. Co., 341 Ill. 431, 173 N.E. 479, in which it was held that a trustee who held the legal title was the sole and unconditional owner of the property for the purpose of insurance, even though he had no personal interest in the proceeds of the policy. In that case Security Ins. Co. v. Kuhn, 207 Ill. 166, 69 N.E. 822,Budelman v. American Ins. Co., 297 Ill. 222, 130 N.E. 513, and National Fire Ins. Co. v. Three States Lumber Co., 217 Ill. 115, 75 N.E. 450,108 Am.St.Rep. 239, are discussed on page 437 of 341 Ill., on page 482 of 173 N.E. It was there pointed out that in the Security Ins. Co. Case, while the insured was only a life tenant of the property insured, she was also a trustee under the will, holding the fee subject to nothing more than contingent remainders. It was further pointed out that in the cases of Budelman v. American Ins. Co., supra, and National Fire Ins. Co. v. Three States Lumber Co. the holding was to the effect that the owner's title was not so far impaired as to violate the insurance clause because of an outstanding and unperformed executory contract for sale.

The appellant refers to, and quotes language from, several other cases, but without stating the facts from which the opinions arose. On of these is Commercial Ins. Co. v. Ives, 56 Ill. 402. In that case an agent for the company, without any communication from the assured, made out an application for the insurance and signed the insured's name to it. It is not in point. Another case is Lycoming Fire Ins. Co. v. Jackson, 83 Ill. 302, 25 Am.Rep. 386, and was decided upon similar facts. The application was not signed by the insured but by an agent of the company. In Traders' Inc. Co. v. Pacaud, 150 Ill. 245, 37 N.E. 460, 461,41 Am.St.Rep. 355, the suit was brought by the Pacaud firm under a policy which contained the recital: ‘Loss, if any, payable to A. L. Pacaud & Co., as interest may appear.’ The policy was issued on its application and premium paid by it, and the property covered was grain in an elevator operated by John H. Million and John A. Bott. Defense was, in part, based upon a theory that the grain was owned by Million & Bott, was in their elevator, and that they had some title or interest in it. It was held that, although the policy was issued to J. H. Million, the loss clause above quoted, together with the fact that the plaintiff applied for and paid the premium on the policy, gave the plaintiff clear right of action. The case of German Ins. Co. v. Gibe, 162 Ill. 251, 44 N.E. 490, is also relied on by the appellant. In that case Jacob T. Gibe, while the owner of certain property, took out insurance on it; the policy containing, among others, the clauses here in question. Thereafter Jacob T. Gibe conveyed the property by warranty deed to Adam Gibe and received back a bond to reconvey. After the fire, Adam Gibe reconveyed to the insured. It was proved on the trial that these transfers were made to permit Adam Gibe to try to secure a loan on the property with which to pay off an existing mortgage, but that no money was ever obtained and that no title ever actually passed by the deed in question. We held that the transactions amounted to nothing more than a futile attempt to raise money and that no change had taken place in title or possession. The case holds no more than that.

Cooley states the law applicable to this particular clause in insurance policies in the following language: ‘In a series of well-considered cases, the rule has been conceived to be that, if the policy provides that it shall be void if the ownership is not absolute in fee simple, or sole and unconditional, or if the interest is not truly stated, a disclosure of the true state of the title is absolutely necessary.’ 3 Cooley on Insurance (2d Ed.) p. 2125. The rule as thus stated is supported by many authorities and is sufficiently well established to make it unnecessary for us to attempt to review all of them.

It was long ago settled in the federal courts that stipulations in insurance policies either exactly the same as or similar to the one under consideration were valid and enforceable. Thus, in the old case of Columbian Ins. Co. of Alexandria v. Lawrence, 2 Pet. 25, 49, 7 L.Ed. 335, the Supreme Court of the United States said: ‘Generally speaking, insurances against fire are made in the confidence that the assured will use all the precautions to avoid the claimity insured against, which would be suggested by his interest. The extent of this interest must always influence the underwriter in taking or rejecting the risk, and in estimating the premium. So far as it may influence him in these respects, it ought to be communicated to him. Underwriters do not rely so much upon the principles, as on the interest, of the assured; and it would seem, therefore, to be always material, that they should know how far this interest is engaged in guarding the property from loss. Marshall, in treating on insurance against fire, p. 789, b. 4, ch. 2, says: ‘It is not necessary, however, in order to constitute an insurable interest, that the insured shall, in every...