The Germania Fire Ins. Co. v. Mckee

• Decision Date: 31 January 1880
• Citation: 1880 WL 9977,94 Ill. 494
• Parties: THE GERMANIA FIRE INSURANCE COMPANYv.MARY G. MCKEE.
• Court: Illinois Supreme Court

94 Ill. 494

1880 WL 9977 (Ill.)

THE GERMANIA FIRE INSURANCE COMPANY

v.MARY G. MCKEE.

Supreme Court of Illinois.

January Term, 1880.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Appellate Court for the Third District.

Mr. GEO. W. GERE, for the plaintiff in error, after a statement of the facts, made the following, among other points:

A considerable part of the insured property was, in law and in fact, the property of Thomas D. McKee.

The defendant in error was not entitled to judgment, because there was a breach of warranty as to the ownership of the personal property.

The plaintiff below, under the rules of evidence and law, was required to make out her case as alleged in her declaration, and herein, of the admission of improper evidence.

The policy provided, if the property “be encumbered by any lien,” etc., it should be void. The declaration averred, that the plaintiff had in all respects kept and performed the conditions and provisions to be by her kept and performed, and the plaintiff was permitted to prove, for the purpose of showing a waiver of the warranty against incumbrances and of the condition of the policy, conversations between the agent of the insured and the agent of the company. She pleaded a performance, and was allowed to prove a waiver of performance. The allegation and proof must correspond. 1 Greenlf. Ev. sec. 51; Tiernan v. Granger, 65 Ill. 351; Taylor v. Beck, 13 Id. 376.

The court erred in refusing to admit proper evidence offered by the defendant below, and in refusing the seventh instruction asked by the defendant. Fraud and collusion between the agent of the insurance company and the assured destroys the rule that knowledge of the agent is to be considered as knowledge of the company and binding upon it. Rockford Insurance Co. v. Nelson, 65 Ill. 415.

Where direct notice or any notice which the assured, as a prudent man, is bound to regard, is brought home to him, limiting the powers of the agent, he relies upon any act in excess of such limited authority at his peril. Wood on Insurance, 631, sec. 387; Messereau v. Phœnix Insurance Co. 66 N. Y. 274; Walsh v. Hartford Fire Insurance Co. 73 Id. 10.

The assignment of T. D. McKee to Webber, under the State law, should have been admitted in evidence.

The court erred in not giving the sixth refused instruction asked by the defendant, and in giving the sixth asked by the plaintiff. As to notice to agent being notice to principal, and extent of rule, see 1 Pars. on Court. (5th ed.) 76, 74, 75.

A warranty is a part of the contract, and must be literally true. Flanders on Fire Insurance, 226; Ætna Life Insurance Co. v. France et al. 91 U. S. 510; Burrill v. Saratoga County Mutual Insurance Co. 5 Hill, 188.

As to fraud or any attempt at fraud on the part of the assured, vitiating the policy or working a forfeiture, see May on Insurance, sec. 477; Wood on Insurance, 744; Sleeper v. N. H. Fire Insurance Co. 56 N. H. 401; Security Insurance Co. v. Fay, 12 Mich. 467.

Where the contract of the parties is reduced to writing, the writings afford the only evidence of its terms. Abrams v. Pomeroy, 13 Ill. 133; Marshall v. Gridley, 46 Id. 250; Winnesheik Insurance Co. v. Holzgrafe, 53 Id. 522; Illinois Mutual Insurance Co. v. O'Neile, 13 Id. 93; Schmidt et al. v. Peoria Mutual and Fire Insurance Co. 41 Id. 299; Hulton v. Arnett, 51 Id. 198; Lighthall v. Colwell, 56 Id. 108; Gibbons v. Bressler, 61 Id. 110; Mann v. Smyser, 76 Id. 365.

Messrs. BRADLEY & BRADLEY, for the defendant in error, after stating the facts of the case at some length, made the following points:

As to the point that the property was that of the husband of the insured, the finding of the facts otherwise by the Appellate Court is conclusive. Rev. Stat. 1877, p. 746, secs. 88 and 90.

Where the agent of the insured knows the facts in respect to the property insured, and makes out the application, the company will be estopped from setting up a breach of warranty in respect to the statement of the condition, etc., of the property, and parol evidence is admissible to show knowledge of the facts by the agent. Bronley v. Insurance Co. 36 N. Y. 550; Peck's case, 22 Conn. 575; Beebe's case, 25 Id. 51; Franklin's case, 42 Mo. 457; Beal's case, 16 Wis. 241; Mahone's case, 21 Wall. 156; May's case, 25 Wis. 306; N. E. F. and M. Insurance Co. v. Schettler, 38 Ill. 166; Hartford F. and M. Insurance Co. v. Cornick et al. 24 Id. 455; Howard Insurance Co. v. Bruner, 23 Pa. (11 Harris) 50; Masters v. Madison County Insurance Co. 11 Barb. 624; Atlantic Insurance Co. v. Wright, 22 Ill. 473; F. and M. Insurance Co. v. Chestnut et al. 50 Id. 116; Insurance Co. N. A. v. McDowell, Id. 128; Rockford Insurance Co. v. Nelson, 65 Id. 415; Andes Insurance Co. v. Fish, 71 Id. 620; Rockford Insurance Co. v. Nelson, 75 Id. 548; St. Paul F. and M. Insurance Co. v. Wells, 89 Id. 82; American Insurance Co. v. Luttrell, Id. 314.

Where the business of the agent is to solicit for his principal and procure customers, and he misleads the insured by a false and erroneous statement of what the application should contain, or, taking the preparation into his own hands, procures his signature by an assurance that it is properly drawn, the description of the risk, though nominally from the insured, ought to be regarded as proceeding from the company. May's case, 25 Wis. 306; Schettler's case, 38 Ill. 166; Wilkinson's case, 13 Wall. 236; Insurance Co. v. Mahone, 21 Wall. 156, and cases before cited.

There was no error in the giving or refusing of instructions, which point the counsel argue at some length.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action of assumpsit, brought by Mary G. McKee against the Germania Fire Insurance Company, on a policy of insurance issued December 24, 1877, by which the plaintiff was insured against loss by fire for one year on a hay barn, cattle sheds, and a large quantity of farming implements, situated on a certain quarter section of land in Champaign county. A trial of the cause in the circuit court resulted in a judgment in favor of the plaintff. An appeal was taken to the Appellate Court, where the judgment was affirmed. To reverse the judgment of the Appellate Court this writ of error was sued out by the insurance company.

In the argument of plaintiff in error the position is taken that a considerable portion of the insured property belonged to Thomas D. McKee, the husband of the plaintiff. This is a question of fact which we can not inquire into. The Appellate Court having affirmed the judgment of the circuit court, of necessity found that the evidence established the ownership of the property in the plaintiff. Under the statute that finding is conclusive, and can not be reversed on appeal or error.

It appears, from the record, that on the 18th day of December a policy was issued on the property in question, No. 20,021, and on account of some mistake contained therein it was surrendered, and the policy in suit, No. 20,026, issued in its place.

On the trial the defendant offered to show that its agent, Hardin, who obtained the risk and issued the policy, had not reported the cancellation of the first policy nor the issuance of the other one, and that he had not reported the issuance of special permits to plaintiff for “steam hay pressing” for ten days, etc. This testimony was offered for the purpose of showing a collusion between the company's agent, Charles E. Hardin, who issued the policy, and the plaintiff. The court excluded the evidence, and the decision is relied upon as error.

If the court had permitted each fact to be proven which defendant offered to prove, we fail to see how a collusion could be established by such facts. This agent was clothed with full authority from the company to issue the policy, and also the special permits, and the fact that he neglected to discharge his duty to the company would not tend to show collusion between him and the assured. The offered...