The Fame Ins. Co. v. Norris

• Decision Date: 31 March 1886
• Citation: 18 Ill.App. 570,18 Bradw. 570
• Parties: THE FAME INSURANCE CO.v.ELIZA T. NORRIS.
• Court: United States Appellate Court of Illinois

18 Ill.App. 570

18 Bradw. 570

THE FAME INSURANCE CO.

v.ELIZA T. NORRIS.

Appellate Court of Illinois, First District.

March Term, 1886.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. KIRK HAWES, Judge, presiding. Opinion filed May 5, 1886.

Mr. HENRY C. WHITNEY, for appellant; that the business performed by Montgomery was not an adjustment in legal parlance so as to be binding on the underwriter, cited Phillips on Insurance, § 1815; Park on Insurance, 117; Starkie on Ev. § 1168; Farmers, etc., Ins. Co. v. Chestnut, 50 Ill. 112; I. M. Ins. Co. v. Archdeacon, 82 Ill. 236; Arnold on Insurance, 196, 197; 2 Green on Ev., § 393; Hughes on Insurance, 274.Messrs. GRANT & BRADY, for appellee; that the pleadings and proofs are sufficient to enable the plaintiffs to recover upon an implied promise, cited Mut. Fire Ins. Co. v. Archdeacon, 82 Ill. 236; Farmers Ins. Co. v. Chestnut, 50 Ill. 112; Abbott's Law Dictionary, title, Adjustment; 2 Phillips on Insurance, Ch. 21, p. 482; 1 Chitty on Pleading, 340; Fowler v. Deakman, 84 Ill. 130; Smith v. Glens Falls Ins. Co., 62 N. Y. 85.MORAN, J.

This appeal is from a finding and judgment in the court below, in favor of appellee.

The narr. was the common counts with a special account attached as follows: “To amount of loss as adjusted on policy No. 1968, $244.45.”

On the trial plaintiff introduced the insurance policy, and a writing purporting to be an adjustment and apportionment between Norris and Trickey and some twenty-one different companies. It appears from the record that the writing showing the adjustment and apportionment was made by J. C. Montgomery, who was an independent insurance adjuster, and who was employed by Southwick, the general agent of the defendant, to adjust the losses on all policies which he represented in the Norris planing mill fire.

Montgomery met with other adjusters who represented different companies, and with Norris and Trickey, and after making various valuations and deductions the proportion of the loss due on this policy was fixed at $244.45.

The writing showing adjustment and apportionment was taken by Montgomery and Norris to Southwick and delivered to him, and proofs of loss were made out on the basis of the adjustment, and properly executed and also delivered.

The adjustment and proofs of loss were forwarded to the secretary of the defendant company, and it does not appear that any objection, either to the proofs of loss or the adjustment, was ever made to the plaintiff. When making the adjustment, Montgomery stated to Norris and Trickey that he would advise his companies to pay cash on the adjustment.

Counsel for appellant, while he admits “that the sum fixed by Montgomery, in his adjustment, is the true amount of the loss, if the insured is entitled to anything,” still insists that what Montgomery did was not binding upon the company, he having no authority to bind it. The contention is that the statement in writing made by Montgomery was not within the meaning of the law an adjustment. An adjustment is defined to be, “the settling and ascertaining the amount of the indemnity which the insured, after all proper allowances and deductions have been made, is entitled to receive, and the proportion which each underwiter is liable to pay under the policy.” Marshall on Insurance, 617. In this case Montgomery was employed by the defendant company to go upon the premises, and in conjunction with the representatives of other companies and the...