The Commercial Ins. Co. v. Mehlman
| Decision Date | 30 September 1868 |
| Citation | 95 Am.Dec. 543,48 Ill. 313,1868 WL 5110 |
| Parties | THE COMMERCIAL INSURANCE COMPANYv.JOHN C. MEHLMAN. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Chicago.
The opinion fully states the case.
Mr. A. C. STORY, for the appellant.
Mr. J. V. LEMOYNE, for the appellee.
This was an action of assumpsit, on two policies of insurance, brought by John C. Mehlman, against the Commercial Insurance Company, in the Superior Court of Chicago, at the April term thereof, 1866.
One of the policies was dated September 11, 1865, for six hundred dollars, upon the defendant's “one story frame building,” the other dated 9th of October, 1865, for one thousand dollars, “upon his stock of groceries and provisions,” and four hundred dollars “upon his stock of meat.”
Both policies contained this condition:
“This policy shall be vitiated by keeping gunpowder, saltpetre, fireworks, naptha, benzine, camphene, turpentine, burning fluid, spirit gas, crude oil or petroleum, or refined coal or earth oils, or kerosene, in quantities exceeding five barrels, or any other articles subject to legal or police restrictions, on the premises, without written consent hereon; or for neglect or deviation from any of the laws or police regulations made to prevent accidents from fire; any change within the control of the assured, material to the risk, without written permission hereon, shall avoid this policy.”
There were two counts in the declaration, to which defendants pleaded the general issue, and eleven special pleas, on all which issues of fact were made up. The defendants then presented their petition, subscribed and sworn to by their secretary, who stated in his affidavit that he had the control of the case and had employed the counsel, for a change of venue, on the ground that the inhabitants of Cook county were prejudiced against the company, and for that reason they could not expect a fair trial of the cause in that county. The petition states that defendants had no knowledge, and did not hear or learn of the existence of those facts and prejudice, until Thursday, the seventh day of June, 1866, nor did knowledge thereof come to any of the attorneys or officers thereof, until that time. They therefore prayed that an order might be made changing the venue to the circuit court of some county where the causes complained of did not exist, &c.
The court refused the petition, to which the defendants excepted. A jury was sworn, and a verdict rendered for the plaintiff. A motion for a new trial was overruled, and judgment rendered on the verdict, to reverse which, defendants appeal to this court.
The first point made by appellants, assigning error on the refusal of the court to grant oyer prayed of the policies, has no foundation, as oyer is never granted of instruments not under seal.
The next point is, the refusal of the court to award a change of venue on the affidavit of the secretary of the company. It is insisted by the appellee, that the application for a change of venue was discreditable to the company, a rich and powerful corporation, litigating with a poor man not possessed of the means required to convey his witnesses to another county. The same may be the case when a rich man is contending at law with a poor man--either can avail of the law, irrespective of the hardships that may ensue. Appellee insists that the application was not sufficient under the statute; first, because it was not made by the defendants, but by an agent, and cites the case of Crowell v. Maughs, 2 Gilm. 421, in which an agent of the party petitioning for a change of venue, made the application and affidavit. The court said, and very properly, that the statute only authorizes the parties to obtain a change of venue, and the application must be made by a party to the record, the petition being verified by his affidavit. The statute does not include persons out of the record, nor allow them to swear to the petition as agents or otherwise.
It will be well to consider this objection in connection with the second made by the appellee, which is, that the law did not intend such an application should be made by a corporation.
These are the several objections urged by appellee against the application for a change, and if valid, very important interests of the State, the corporate interest, are in a degree outlawed. Why should not corporations have the same privilege of protection from prejudice as a natural person? Are their chartered rights and pecuniary interests less to be regarded than those of the individual? If so, why so? No good reason can be assigned why corporations should not have the benefit of this law equally with individuals. It is true they are not expressly embraced by name in the statute, but courts sit to administer the law, us well in its spirit as in its words. Parties to a suit, either party, may make the applicacation. This corporation is one party, and the only real question is, how, being a party, can it make the requisite affidavit. We have no decided case in point, but we know a corporation can only act by its officers and agents, and the spirit and reason of this law would require us to regard a recognized officer of a corporation as a party pro hac vice. Suppose a corporation is sued or suing, desires a continuance, or is summoned as a garnishee in a case, who, but an officer of the company, having charge of its business, could make the affidavit in the first case, or answer interrogatories in the other? And we are not without authority in regard to the last proposition. In the case of Oliver v. The Chicago & Aurora Railroad Company, 17 Ill. 587, which was where a judgment had been recovered before a justice of the peace against the company, and an appeal taken to the circuit court, the only question considered was whether the answer made by the garnishee was sufficient. The court say, the garnishee was a corporate company, created by the laws of this State, necessarily performing all its functions and acts through its agents and representatives. The answer was signed by Mr. Hall, the secretary and treasurer of the company, and under its corporate seal, but was not sworn to by any one. This was not a compliance with the statute; that requires the answer to be sworn to in all cases. And the court say, “In this case it is true the corporation could not in person swear to the answer, but it could have been sworn to by the proper officer or agent of the company, knowing the facts, which would have been a substantial compliance with the statute. The same reasoning will apply in this case.
This court has decided that an action for assault and battery will lie against a corporation. St. Louis, Alton & Chicago R. R. Co. v. Dalby, 19 Ill. 353. Would it not be an intolerable hardship and gross injustice to a corporation thus sued in the home court of the party injured, and he possessing great influence in his county, personal and otherwise, that the corporation should be deprived of the right to take the suit to another county, where the parties would be upon more equal grounds, where this influence did not prevail. No party to a suit can be deprived of the benefit of this law, if it is administered in its spirit. There is no doubt, that in very many cases these applications are made for sinister purposes, but that is a fact and an argument for the law-making power. Courts must administer the law as it is, according to its letter, spirit, and obvious meaning and intention.
But this reasoning is, perhaps, unnecessary, as the statute referred to by appellant, covers the whole ground. In ch. 90, Scates' Comp. 722, § 29, it it is...
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