The Aurora Fire Ins. Co. v. Eddy

• Decision Date: 30 September 1870
• Citation: 1870 WL 6403,55 Ill. 213
• Parties: THE AURORA FIRE INSURANCE CO.v.JAMES W. EDDY.
• Court: Illinois Supreme Court

55 Ill. 213

1870 WL 6403 (Ill.)

THE AURORA FIRE INSURANCE CO.

v.JAMES W. EDDY.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of DeKalb county; the Hon. THEODORE D. MURPHY, Judge, presiding.

This was an action of assumpsit, brought by James W. Eddy, against the Aurora Fire Insurance Company, to recover upon a policy of insurance upon a building used as a “flax factory,” for a loss occasioned by the destruction of the property by fire.

The policy, among other things, contained the following clause: “It is expressly agreed that the assured is to keep eight buckets filled with water on the first floor, where the machinery is run, and four in the basement by the reservoir, ready for use at all times in case of fire. Also, that smoking shall be strictly prohibited in or about the buildings.” It also provided, that “if the title of the property is transferred or changed, or the policy is assigned without written permission hereon, this policy shall be void.”

Other features of the policy, involved in the controversy, are fully disclosed in the opinion of the court.

A trial in the court below resulted in a verdict and judgment for the plaintiff. The company appealed.

Mr. B. F. PARKS, for the appellants.

In answer to a question on the subject of the mode in which the building was warmed, in the application, the assured answered that no stoves were used, yet afterwards stoves were used in the building for warming purposes. This was a violation of the contract. Schmidt v. Peoria Mut. Fire Ins. Co. 41 Ill. 296; Aurey v. Commonwealth Ins. Co. 10 Pick. Mass. 535; Merwin v. Middlesex Mut. Ins. Co. 21 Pick. 162; Murdock v. Chenango Mut. Ins. Co. 2 Comst. 210.

There was a transfer of the title, in violation of the terms of the policy. Dix v. Mercantile Ins. Co. 22 Ill. 272; McLoren v. Hartford Fire Ins. Co. 1 Selden, 151; Dreher v. Ætna Ins. Co. 18 Mo. 128. In the case of Western Massachusetts Ins. Co. v. Riker, 10 Michigan, 279, the court hold the following language: “A policy of insurance containing a condition that, in case of any sale, transfer or change of title in the property insured, such insurance shall be void and cease, is voided by a conveyance which is absolute in form, though given as security for a debt, merely, and this, though only an undivided interest in the property insured is conveyed.”

See, also, Barnes v. Mut. F. Ins. Co. 51 Me. 110; Hartford Fire Ins. Co. v. Ross, 23 Ind. 179; Ayres v. Hartford Fire Ins. Co. 17 Iowa, 176.

It was improper to allow the plaintiff below to prove that the agent who issued the policy told him he could erect and operate machinery for making rope in the “flax factory.” Schmidt v. Peoria Marine & Fire Ins. Co. 41 Ill. 295; Mayor, etc. of New York v. Brooklyn Mut. Ins. Co. 41 Barb. 231; Boggs v. Am. Ins. Co. 30 Mo. 63; Lee v. Howard Fire Ins. Co. 3 Gray, 583; Ill. Mut. Ins. Co. v. O'Neil, 13 Ill. 89.

Mr. CHARLES HITCHCOCK, also for the appellants.

Messrs. WHEATON & MCDOLE, for the appellee.

Although the assured executed a deed, absolute in form, he took a defeasance which rendered the transaction only a mortgage. Delahay v. McConnel, 4 Scam. 157, and cases there cited; Coates v. Woodworth, 13 Ill. 654; Miller v. Thomas, 14 Ill. 428; Tillson v. Moulton, 23 Ill. 648; De Wolf v. Strader, 26 Ill. 225; 28 Ill. 149, 277; 32 Ill. 475.

The giving of a mortgage by the assured is not such an alienation, or transfer of title, as will avoid the policy. Masters v. Madison Co. Mut. Ins. Co. 11 Barb. 224; see Benbank v. Rockingham Mut. Fire Ins. Co. 4 Foster (N. H.) R. 550; Smith v. People's Bank, 11 Shep. (Me.) 185; Trumbull v. Portage Mut. Fire Ins. Co. 12 Ohio, 365; Tittemore v. Mut. Ins. Co. 20 Vt. 146; Holbrook v. Am. Ins. Co. 1 Curtis (Cir. Co.) 193; Jackson v. Mass. Mut. Fire Ins. Co. 23 Pick. 418; Lazarus v. Commonwealth Ins. Co. 19 Pick. 81; same case in 5 Pick. 76; 2 Am. Leading Cases, 561, note; Locke v. North Am. Ins. Co. 13 Mass. 61; Higginson v. Dale, 13 Mass. 96; Gordon v. Fire & Mar. Ins. Co. 2 Pick. 249; Crownover v. Mut. Ins. Co. of Albany, 1 Comst. 290; Com. Ins. Co. v. Spankneble, 52 Ill. 53.

It is claimed by appellants that the policy was avoided by the putting of rope machinery into the mill after the policy was issued.

The description of the premises in the application and policy is, three story stone flax factory, etc. The description is certainly broad enough to cover any kind of manufacture of flax into anything else, and warrant its use for any purpose which a flax factory might be adapted to, the manufacture of flax into rope, or anything else, and the use of any and all necessary machinery therefor, and there is nothing in the policy or application which limits such use. There is no prohibition in the policy or application of the manufacture of rope, and nowhere any warranty or representation that rope should not be manufactured, or machinery therefor put in. The very terms of the description involve the idea that rope may be manufactured, if rope is manufactured in a flax factory; and certainly no warranty will be implied for the benefit of the insurance company. Lounsbury v. Protection Ins. Co. 8 Conn. 499; New York Equit. Ins. Co. v. Langdon, 6 Wend. 623; Pim v. Reid, 6 Man. and Grang. 1 (46 Eng. C. L. 1); Blood v. Howard Fire Ins. Co. 12 Cush. 172.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This case was previously before this court, and is reported in 49 Ill. 106. It was then reversed, because erroneous instructions were given. There was a stipulation in the policy, that the assured should keep eight buckets filled with water on the first floor where the machinery was run and four in the basement, by the reservoir, ready for use at all times in case of fire. In considering the case, when previously before us, we held, that a reasonable construction of this clause required, that while, from freezing or unavoidable causes, a literal compliance with the warranty might have been impossible, and could not have been in the contemplation of the parties, still, it was incumbent on the assured to show that the required number of buckets, in good and serviceable condition, were at the places designated in the agreement, ready for instant use.

This being the requirement, it devolved upon the assured to prove that he had complied therewith.

On that question, there was some contrariety in the evidence, which the jury were required to reconcile, or, if unable to do so, then to give weight to such as they believed to be true.

In such cases, it is the province of the jury to carefully weigh the whole of the evidence, and to find according to its weight, and the presumption is, that they have done so, unless we see from the record that they misunderstood or disregarded the proof. The court will not disturb their finding on any question, unless it appears clearly to be unsupported. In this case, while we might have arrived at a different conclusion, we are not prepared to say that there were not the required number of buckets in their places, in good order and ready for instant use.

The testimony on this question introduced by appellee is more positive and affirmative in its character than that of appellants. The witnesses of the latter, in the main, only say they did not see the buckets, but fail to state that they had searched for the buckets, or had their attention called to the matter. It is true, that two of them say they had, at one time, occasion to use some buckets but only found six. This may have been true, and the proper number still have been in the mill. Dodds, on his examination in chief, seems to be positive as to the want of buckets, but the value of this testimony is greatly impaired by his cross examination, when he was not at all positive on the subject. On the other hand, appellee's witnesses all examined expressly to see if the buckets were there. At most, it seems to be no more than doubtful whether the buckets were all there, but it is by no means clear, nor is there a clear preponderance of evidence, that there was not the requisite number.

It is next urged that there was smoking allowed in the factory, contrary to the stipulation in the policy. It was agreed, that smoking should be strictly prohibited in and about the premises. Eddy swears he prohibited smoking in and about the buildings, and this was a literal compliance with his part of the agreement to prohibit smoking. In the case of The Insurance Co. of North America v. McDowell, 50 Ill. 121, it was stated, in answer to a question propounded to the assured, and which became a part of the conditions upon which the policy was issued, that smoking was not allowed. And it appears there had been smoking by some of the employees about the mill, but as soon as the attention of the assured was called to the fact that it was contrary to the terms of the policy, he forbid it, and put up a notice that it was not allowed. It was there held, that in such a case the assured only undertakes that he himself will not do the act, or allow others to do so, if by reasonable precaution he can prevent it. In this case appellee prohibited smoking, and there is no evidence that he had any notice that his orders had been disregarded, so as to require him to resort to other and more energetic steps for its prevention. He did not agree that, if there should be smoking in or about the buildings, the policy should be void. He, or any man who is at all qualified to transact the most ordinary business, would not enter into such an engagement, as strangers and others over whom he had no control were liable to smoke about the buildings. Had the evidence shown that his orders were disregarded, and that it had come to his knowledge, then a different question would have been presented for our consideration. But the jury were, under the evidence before them, warranted in finding appellee had used reasonable efforts to prevent smoking in or about the buildings.

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