Sundquist v. Hardware Mut. Fire Ins. Co. of Minnesota

• Decision Date: 04 October 1938
• Docket Number: Gen. No. 9302.
• Citation: 16 N.E.2d 771,296 Ill.App. 510
• Parties: SUNDQUIST v. HARDWARE MUT. FIRE INS. CO. OF MINNESOTA ET AL.
• Court: United States Appellate Court of Illinois

296 Ill.App. 510

16 N.E.2d 771

SUNDQUIST

v.HARDWARE MUT. FIRE INS. CO. OF MINNESOTA ET AL.

Gen. No. 9302.

Appellate Court of Illinois, Second District.

Aug. 16, 1938.

As Modified on Denial of Rehearing Oct. 4, 1938.

Appeal from Circuit Court, Stark County; John T. Culbertson, Jr., Judge.

Action by Anton E. Sundquist, doing business as Sundquist & Son, against the Hardware Mutual Fire Insurance Company of Minnesota and others on fire insurance policies. From an adverse judgment, the defendants appeal.

Affirmed. Clausen, Hirsh & Miller, of Chicago, for appellants.

Andrews & Young, of Kewanee, for appellee.

DOVE, Presiding Justice.

On December 18, 1935, the defendants issued to the plaintiff Anton E. Sundquist a policy of insurance by the provisions of which the defendants insured the plaintiff against loss or damage by fire to the amount of $8,000 from January 5, 1936, to January 5, 1937, on plaintiff's stock of merchandise consisting chiefly of furniture and contained in a one story brick, metal roof, building, located at No. 315 and No. 317 Market Street in Galva, Illinois. On August 27, 1936, the defendants also issued to the plaintiff another policy of insurance also insuring plaintiff against loss or damage by fire to the amount of $1,000 from August 24, 1936, to August 24, 1937, on the same merchandise contained in the same building. Under the provisions of the policies, each defendant became severally liable to pay one-third of any loss sustained under the policies. While the policies were both in effect and on the evening of December 24, 1936, the property covered by said policies of insurance was destroyed by fire. Proofs of loss were furnished the companies but payment having been refused, the plaintiff on May 8, 1937, instituted this suit. The complaint alleged the issuance of the policies and the destruction by fire of the property insured, alleged that the value of the property insured, at the time of the fire, was $20,000, that the plaintiff was the owner thereof and had in all respects complied with the provisions of the policy on his part to be performed and praying for judgment against the defendants for $9,000 with 5% interest from February 25, 1937. The answer of the several defendants admitted the issuance and deliverance of the policies declared upon and admitted a destruction of the property by fire on December 24, 1936, but denied that the plaintiff was damaged to the extent of $20,000 and denied that his goods, merchandise, furniture and fixtures were worth at the time of the fire said sum of $20,000. The answer further alleged that each of the policies of insurance contained the following provisions: “This 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, or in case of any fraud or false swearing by the insured, touching any matter relating to this insurance or the subject thereof, whether before or after a loss.” The answer then alleged that the plaintiff violated this provision of the policies in the following particulars, viz.: First, by representing to the defendants, after the fire, that the cause of the fire was unknown while in truth and in fact plaintiff well knew that it was incendiary; second, by rendering to the defendants on February 6, 1937, certain documents purporting to be sworn statements in his proof of loss, which were signed and sworn to by the plaintiff in which he swore that the cause and origin of the fire was unknown to him when in truth and in fact the plaintiff well knew that the fire was of incendiary origin; third, that in said proof of loss plaintiff swore that the cash value of the property insured under the policies was $20,117.42, whereas in truth and in fact the value of the merchandise insured was less than $5,000; fourth, that plaintiff also swore in his proof of loss that the whole loss and damage to his merchandise was $20,117.42, whereas in truth and in fact the whole loss and damage to said merchandise was less than $5,000 as the plaintiff then and there well knew; fifth, that in his proof of loss the plaintiff also represented that certain property claimed to have been insured by the defendants had been damaged and destroyed, which in truth and in fact had not been damaged or destroyed by fire and was not in the building at the time of the fire as the plaintiff then and there well knew. The answer further alleged that all of said false and fraudulent statements related to material facts and circumstances concerning the insurance in question, that they were wilfully made by the plaintiff with the intention to cheat and defraud the defendants and that the plaintiff wilfully and maliciously set fire to or caused fire to be set to the building and property described in the policy of insurance and that by reason thereof and by reason of said false and fraudulent statements made in the proof of loss defendants are not liable under either of the said policies of insurance. In his reply plaintiff denied the several charges made against him by the defendants in their answer and the issues were submitted to a court and jury, resulting in a general verdict finding the issues for the plaintiff and assessing his damages at $9,259.95 and apportioning one-third of said amount against each defendant. There were also submitted to the jury six special interrogatories. By the first the jury especially found that the actual cash value of the plaintiff's stock of merchandise covered by the policies of insurance sued on immediately prior to the fire was $18,165.21. By the second special interrogatory the jury found the actual cash value of plaintiff's furniture and fixtures covered by the policies sued on immediately prior to the fire was $1,952.21. Special interrogatory No. 3 is as follows: “In his proofs of loss signed and sworn to by him, did the plaintiff falsely and fraudulently, with the wilful purpose of cheating and defrauding the defendants, swear that the cash value of the property covered by the policies of insurance sued on at the time of the fire was greater than the actual cash value thereof?” Special interrogatory No. 4 was: “In his proofs of loss signed and sworn to by him did the plaintiff falsely and fraudulently, with the wilful purpose of cheating and defrauding the defendants, swear that the amount of the whole loss and damage sustained under the policies of insurance sued on in the fire in question was greater than he actually sustained?” Special interrogatory No. 5 was: “In his proofs of loss signed and sworn to by him, did the plaintiff falsely and fraudulently, with the wilful purpose of cheating and defrauding the defendant, swear that the origin of the fire in question was unknown to the plaintiff when in truth and in fact the plaintiff then knew that the said fire was of incendiary origin?” Special interrogatory No. 6 was: “In his proofs of loss signed and sworn to by him, did the plaintiff falsely and fraudulently, with the wilful purpose of cheating and defrauding the defendants, swear that more property had been damaged and destroyed by the fire in question than was actually damaged and destroyed by said fire?” The jury answered each of these special interrogatories in the negative and after overruling a motion for a new trial, the Court rendered appropriate judgments upon the verdict and the defendants have prosecuted this appeal.

From the pleadings and the evidence it appears that prior to 1922 William E. Emery conducted a retail furniture business at said No. 315 and No. 317 Market Street in Galva, that he was adjudicated a bankrupt and his stock of merchandise consisting of furniture, rugs, house furnishings, phonographs, records, pianos, piano players and music was duly appraised at $9,621.20 and on January 24, 1922, sold at public sale by his trustee under the direction of the United States District Court for the Northern Division of the Southern District of Illinois, to appellee for $6,500. From that time until the building and contents were destroyed by fire on the evening of December 24, 1936, appellee conducted a retail furniture store at this address. At the time of the trial appellee testified that he was fifty-nine years of age, lived in Toulon and had lived there all his life, where he also conducted a furniture store. At the time of the fire, insurance aggregating $18,500 was being carried by appellee upon the property destroyed. Elwin E. Bartlett was an insurance salesman and represented appellants and testified that he had known appellee for four years and that appellee had been paying appellants between eighty and one hundred dollars a year for insurance for some time. That on August 24, 1936, Bartlett called upon appellee at his store in Galva and discussed insurance with him in his office, which was located in the back part of the store, that appellee advised him that he was then carrying $17,500 upon his stock of merchandise which he, appellee, valued at $22,000, but stated he might increase it. That Bartlett then told him about the eighty per cent co-insurance clause and advised him that as his stock was valued at $23,000, eighty per cent thereof would be $18,400 and in order to obtain the fifteen per cent discount upon his premium, which he would receive if he carried eighty per cent of the value of his stock in insurance, he should increase his insurance $1,000, which was done and the $1,000 policy involved in this proceeding was afterward executed and delivered to appellee. Bartlett further testified that upon this visit appellee advised him that he had $5,000 windstorm insurance upon his stock of goods and that he, Bartlett, then wrote appellee an additional $13,500, making the fire and windstorm insurance which he carried each aggregate $18,500.

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