The Fame Ins. Co. v. Mann

• Decision Date: 31 October 1879
• Parties: THE FAME INSURANCE COMPANYv.JOSEPH MANN ET AL.
• Court: United States Appellate Court of Illinois

4 Ill.App. 485

4 Bradw. 485

THE FAME INSURANCE COMPANY

v.JOSEPH MANN ET AL.

Appellate Court of Illinois, First District.

October Term, 1879.

OPINION TEXT STARTS HERE

ERROR to the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding. Opinion filed November 5, 1879.

Messrs. GRANT & SWIFT, for plaintiff in error; that a principal cannot be held to have adopted and ratified the acts of a voluntary agent, unless all the material facts connected with the act are made known to the principal, cited Cadwell v. Meek, 17 Ill. 227; Mathews v. Hamilton, 23 Ill. 471; Farwell v. Meyer, 35 Ill. 52; Kerr v. Sharp, 83 Ill. 199; Stein v. Kendall, 1 Bradwell, 106.

Taylor and Eastman were the agents of the insured: Lycoming Ins. Co. v. Rubin, 79 Ill. 402.

When the applicant signed the application to be forwarded, he made it his own: Ayres v. Hartford Ins. Co. 17 Iowa, 189; Ayers v. Home Ins. Co. 21 Iowa, 192; Lowell v. Middlesex Ins. Co. 8 Cush. 127; Lee v. Howard Ins. Co. 3 Gray, 583.

The company was not bound by Taylor's knowledge of facts material to the risk: Rockford Ins. Co. v. Nelson, 65 Ill. 422.

Omission of facts relating to the risk were material, even if their disclosure would not have caused the company to raise the rate or refuse the risk: Nicoll v. American Ins. Co. 3 W. & M. 535; Wood v. Hartford Ins. Co. 13 Conn. 533; Mut. Life Ins. Co. v. Miller, 39 Ind. 475; Dewees v. Manhattan Ins. Co. 34 N. J. 243.

The title should have been disclosed in the application: Reaper City Ins. Co. v. Brennan, 58 Ill. 158; Columbian Ins. Co. v. Lawrence, 2 Pet. 42; Atlantic Ins. Co. v. Wright, 22 Ill. 473; Lycoming Ins. Co. v. Jackson, 83 Ill. 308.

As to the right to amend a bill of exceptions: Bergen v. Riggs, 40 Ill. 61; Steele v. The People, 40 Ill. 59; Brooks v. Bruyn, 40 Ill. 64; Wallahan v. The People, 40 Ill. 102; McCormick v. Wheeler, 36 Ill. 114; 9 Chicago Legal News, 334; Tidd's Pr. 714; Rev. Stat. Chap. 7, § 4.

Points in writing need not be made on motion for new trial: O. O. & F. R. V. R. R. Co. v. McMath, Ill. Sup. Ct. 1879.

Defendants in error should assign cross-errors on such objections, or move in this court to strike out the amended record, instead of preparing a separate bill of exceptions against the amendments: Myers v. Phillips, 68 Ill. 269.

Mr. PHILIP STEIN, for defendants in error; against the right to amend a bill of exceptions, cited Rogers v. Hall, 3 Scam. 5; McLaughlin v. Walsh, 3 Scam. 185. A court has no power over its record after the term has passed, except to correct errors and misprisions of its officers: Co. Litt. 260; 3 Black. Com. 406; People v. Whitson, 74 Ill. 20; Dunham v. So. Park Com'rs, 87 Ill. 185; C. & St. L. R. R. Co. v. Holbrook, 72 Ill. 419; Coughran v. Gutchens, 18 Ill. 390; O'Connor v. Mullen, 11 Ill. 116; Forquer v. Forquer, 19 Ill. 68; Rauh v. Ritchie, 1 Bradwell, 288; Baragwanath v. Wilson, 4 Bradwell, 80; Lake v. Morse, 11 Ill. 587; Frink v. Schroyer, 18 Ill. 416.

It can only amend as to matters of form: Lill v. Stookey, 72 Ill. 495; Cook v. Wood, 24 Ill. 295; Smith v. Wilson, 26 Ill. 186; McKindly v. Buck, 43 Ill. 488; State Savings Inst. v. Nelson, 49 Ill. 171; Lilly v. Shaw, 59 Ill. 72; Windett v. Hamilton, 52 Ill. 180; Cox v. Brackett, 41 Ill. 222.

An application to extend time for filing a bill of exceptions must be made within the time originally limited: Evans v. Fisher, 5 Gilm. 569; Burst v. Wayne, 13 Ill. 599; Dent v. Davison, 52 Ill. 109.

Points in writing on motion for new trial should be made: Vanderbilt v. Johnson, 3 Scam. 48; Barnes v. Barber, 1 Gilm. 401; Horn v. Eckert, 63 Ill. 522; St. L. A. & T. H. R. R. Co. v. Dorsey, 68 Ill. 326.

Plaintiff in error is estopped from taking advantage of the mis-description because it was made by its own agent: Wood on Fire Insurance, 674.

Making the loss payable to other parties than the applicant for insurance was notice to the company that they had an interest in the property: Lycoming Ins. Co. v. Jackson, 83 Ill. 302.

Thomas had an insurable interest in the realty, as the loss must be borne by him: Rockford Ins. Co. v. Nelson, 65 Ill. 415.

Plaintiff in error was not authorized to effect insurance in Wisconsin and it is a question if it can be afforded protection from a contract entered into in violation of law: Rosenthal v. Cin. Mut. Health Co. 55 Ill. 85.

The policy is to be construed most strongly against the maker: May on Insurance, §§ 160, 175; Elliott v. Hamilton M. I. Co. 13 Gray, 139.

Against incorporating testimony verbatim in a bill of exceptions: Harvey v. Van De Mark, 71 Ill. 117; C. & A. R. R. Co. v. R. R. I. & St. L. R. R. Co. 72 Ill. 34; Kelley v. Kellogg, 79 Ill. 477; Thatcher v. The People, 79 Ill. 597.

BAILEY, P. J.

When the record in this cause was first filed in this court, the bill of exceptions failed to show the instructions to the jury, the motion for a new trial, the decision of said motion, and the defendant's exceptions thereto. Subsequently, the defendant, on due notice to the plaintiffs, entered its motion in the court below to amend the bill of exceptions by inserting therein the matter thus omitted, which motion was granted against the objection and exception of the plaintiffs, and the bill of exceptions amended accordingly. The amended record having been brought to this court, the plaintiffs have filed cross-errors, assigning for error the decision of the court granting the amendment. On this point it is sufficient to say that the practice of amending bills of exceptions subsequent to the term at which they are signed and filed, on due notice to the opposite party, in order to correct errors or supply omissions therein, has been repeatedly sanctioned by the Supreme Court, and cannot now be successfully called in question. Wallahan et al. v. The People, 40 Ill. 103; Brooks v. Bruyn, Id. 64; Goodrich v. City of Minonk, 62 Id. 121.

This suit was brought by Joseph and Henry Mann against the Fame Insurance Company on a policy of insurance against fire, issued by the defendant to one David J. Thomas, and containing a provision that the loss, if any, should be payable to the plaintiffs, as their interest might appear. The question of the right of the plaintiffs to bring suit on such policy in their own names is expressly waived by the defendant, and so need not be considered.

The policy in suit was for the sum of $1,000, and covered a certain building occupied by said Thomas, and described as “his two-story frame, shingle-roof, clothes-pin and broom-handle factory building,” and also certain machinery and fix-tures contained in said building. The defense is based upon certain alleged false representations or concealments by the assured in procuring his policy of insurance, relative to the title and occupancy of the property covered by the policy. The property was insured upon a written application for insurance signed by said Thomas, in which, to the question, “Is it viz: the property to be insured, owned and occupied by the applicant?” he answered, ““Yes;” and to an inquiry as to whether there was any incumbrance on the property, a negative answer was given. The premises were also named and described in the application as “a clothes-pin and broom-handle factory;” and to the question: “What is the precise kind of goods made, and of what material?” the answer, “clothespins and broom-handles” was given.

The evidence shows that said building was erected by Thomas on land belonging to the Wisconsin Central Railroad Company, and that at the time some arrangement existed between him and the Company for the purchase of said land; and that the plaintiffs purchased and paid for the same, taking the title in their own names, and agreed with Thomas to hold the title as security for a large indebtedness owing from him to them. Said indebtedness, to an amount exceeding the insurance, remained unpaid at the date both of the policy and the loss. The evidence further shows that at the date of the policy and from thence up to the date of the loss, a portion of the building was occupied and used by Thomas as a shingle factory.

The circumstances attending the execution of the policy, as shown by the record, are substantially as follows: One Taylor, who at that time was doing an insurance business, having his office at Menasha, Wis., but who does not appear to have been in the employ of the defendants, as agent or otherwise, called upon said Thomas, at Colby, Wis., where the latter resided, and where the property described in the policy was situate, to solicit from him an application for insurance. The interview resulted in the execution by Thomas of an application written upon a printed blank of the Planters' Insurance Company. The application was addressed to the Mercantile Insurance Company of Chicago, but Taylor was instructed by Thomas to place the insurance with any good company he might select. It does not appear that the name of the defendant company was mentioned, nor that any claim was made by Taylor of authority to act as its agent. The application was transmitted by Taylor to one Eastman, an insurance broker, doing business in Chicago, and by him presented to an agent of the defendant, who issued and delivered to Eastman, for Thomas, the policy in suit. It appears that Eastman subsequently paid the premium to the defendant's agent, and also that Thomas paid the premium to Taylor, but there is no evidence of the payment of said money by Taylor to Eastman. On these facts, the court, after refusing to give to the jury the instructions asked on behalf of the defendant, gave to them, on his own motion, an instruction, the material part of which was as follows:

“The contest is over the facts that a shingle factory was carried on on the premises, and that Thomas was not absolute owner of the property. If Taylor solicited Thomas to insure, and Thomas got the policy from him and paid the premium to him after getting the policy, and if the defendant delivered the policy before receiving the...