The Hartford Fire Ins. Co. v. Walsh

Decision Date30 June 1870
Citation1870 WL 6279,54 Ill. 164,5 Am.Rep. 115
CourtIllinois Supreme Court


APPEAL from the Alton City Court; the Hon. HENRY S. BAKER, Judge, presiding.

The opinion states the case.

Mr. CHARLES P. WISE, for the appellants.

Messrs. L. & L. DAVIS, for the appellee. Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of assumpsit, brought by appellee, to the September term of the Alton city court, against appellants, on a policy of insurance. It appears that appellee was, on the fourth day of June, 1866, the owner of a two-story and a one-story frame dwelling in the city of Alton, and that, in consideration of a premium paid the company, it issued a policy of insurance upon these houses to appellee, and insured the two-story house at $1200, and the one-story house at $500, for one year from that date, against loss by fire, and in case of loss, the money to be paid in sixty days after notice and proof of loss; that in May, 1867, and before the policy expired, it was renewed for one year, and it was again, in June, 1868, renewed for another year; that about the twenty-third of December, 1868, the houses were both destroyed by fire; that in January, 1869, notice of the loss was given, and proof was made and rendered to appellants, and that the company had failed to pay the insurance money to appellee.

Appellants pleaded the general issue, and gave notice that on the trial they would rely upon the fact that the two-story house had remained vacant and unoccupied more than thirty days before it was burned, without giving notice as required by one of the conditions of the policy, whereby it had become void; that the policy, as to the one-story house, had become void by appellee having increased the risk on the same after the policy was issued, by changing it from a dwelling house to a fancy dry goods store and a dwelling, and was so used when it was burned, and that in violation of the policy, appellee had made a voluntary transfer and conveyance of the insured premises.

It is urged, as one of the conditions in the policy was that, if the premises were vacated by the removal of the owner or occupant for a period of more than thirty days without immediate notice to the company and consent endorsed on the policy, it should become void, that condition was violated by the removal of appellee from the two-story house, and subsequent removal of a tenant who occupied the house; and that it had remained vacant more than thirty days without notice to the company, and their consent endorsed on the policy. That the house did thus become and remain vacant is not contested, but it is insisted, and the evidence seems to justify the conclusion, that notice was given to the agents in May, 1867, and that one of them gave his verbal consent. It also appears that, subsequently to that time, the agency was changed, and McPike and Newman acted for the company from that time until the fire, and there is no pretense that any such notice was given to them or any other person at or subsequent to the time of the second renewal, which was obtained through them.

A renewal of a policy is, in effect, a new contract of assurance, and, unless otherwise expressed, on the same terms and conditions as were contained in the original policy....

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