Schmidt v. the Peoria Marine
| Decision Date | 30 April 1866 |
| Citation | 41 Ill. 295,1866 WL 4584 |
| Parties | FREDERICK SCHMIDT et al.v.THE PEORIA MARINE AND FIRE INSURANCE COMPANY. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Cook county; the Hon. ERASTUS S. WILLIAMS, Judge, presiding.
This was an action of covenant brought in the court below, by Frederick Schmidt and August Binzo, against the Peoria Marine and Fire Insurance company, upon a policy of insurance.
A portion of the policy is as follows:
“ The Peoria Marine and Fire Insurance Company, Peoria, Illinois:
By this policy of insurance the Peoria Marine and Fire Insurance company, in consideration of forty dollars to them paid by the assured hereinafter named, the receipt whereof is hereby acknowleged, do insure Messrs. Schmidt & Company against loss or damage by fire to the amount of four thousand dollars.
$2,500 on their stock of hides and leather, and $500 on their tools contained in their one and a half story frame building, occupied as a tannery, situate on the west bank of the Chicago river, 200 feet north of Clybourne bridge, Chicago. $250 on their bark mill, and $250 on their frame building containing the same, situate on the north side of, and attached to said tannery. $500 on the stock of bark piled in and near the building containing bark mill. No fire in or about the above buildings, except one under kettle securely imbedded in masonry (used for heating water) and made perfectly secure against accidents. The above buildings are situate over 200 feet from any other building.”
One of the questions presented is, in regard to the proper construction of the words describing what fire was used in the buildings.
The facts upon which other questions arise, will be found in the opinion of the court.
A trial resulted in a verdict and judgment for the defendant. The plaintiffs bring the case to this court by appeal.
Messrs. ROSENTHALL & HOPKINS and Mr. M. F. TULEY, for the appellants.
Messrs. SCAMMON, MCCAGG & FULLER, for the appellee.
This was an action brought by the appellants against the appellee, upon a policy of insurance issued upon a tannery in the city of Chicago. The policy contained these words: “No fire in or about said building, except one under kettle securely imbedded in masonry (used for heating water), and made perfectly secure against accidents.” The policy was issued on the 16th September, 1864. It was proved that the building was destroyed by fire in March, 1865, and that at the time of the fire there were two stoves in the building, one up stairs and the other on the first floor. It was also proved that there had been no fire in the stove on the first floor for eight days previous to the destruction of the building. In the stove up stairs a fire had been kindled at six o'clock in the morning and extinguished at eight or half-past eight o'clock in the morning, and was not again rekindled. The fire occurred about 11 o'clock the following night.
It is contended by the appellee that the words in the policy above quoted are to be taken as a warranty, on the part of the assured, that there shall be no fire during the continuance of the policy, except the one under the kettle, and that a breach of the so-called warranty avoids the policy. In behalf of the appellants, it is insisted that these words are, what is called by some writers upon insurance, an affirmative as distinct from a promissory warranty, and are to be construed as referring to the condition of the property at the time the policy was issued. It is a question upon which the authorities differ; but, in view of the fact, that insurance companies dictate the language of their own policies, which is therefore to be construed most strongly against themselves, and can, if they wish, insert a stipulation which in terms refers to the future use of the property, and do, by an express provision in this, as in, we presume, all policies, relieve themselves from all liability in case the risk is actually increased, we are inclined to adopt the ruling of those cases which hold that...
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