The Imperial Fire Ins. Co. v. Gunning
| Decision Date | 31 January 1876 |
| Citation | 1876 WL 9961,81 Ill. 236 |
| Parties | THE IMPERIAL FIRE INSURANCE COMPANYv.JOHN C. GUNNING et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Montgomery county; the Hon. HORATIO M. VANDEVEER, Judge, presiding.
Mr. JAMES M. TRUITT, and Messrs. RICE & MILLER, for the appellants.
Mr. JESSE J. PHILLIPS, and Mr. EDWARD LANE, for the appellees.
This bill was for an injunction and relief. A demurrer was sustained to it, and the bill dismissed for want of equity.
It is charged, defendant Gunning procured from complainant a policy of insurance against loss by fire, in the sum of $5000, on his brick wagon factory building and its contents, and that afterwards the building, with all it contained, was destroyed by fire. It is further alleged, that at about the same time, Gunning procured other insurance upon the same property, in all $18,000.
After the fire, Gunning compromised with some of the insurance companies, and left the country. Suits in attachment were commenced against him by a number of different persons, and complainant was summoned in each case as garnishee.
The grounds of relief set forth are, that Gunning procured the policy of insurance with the intention of setting on fire the building that he might recover the insurance, and that afterwards he did set the fire that caused the destruction of the building and its contents. The prayer of the bill is, the policy may be declared void and the suits against complainant be enjoined. It will be observed, it is not charged Gunning was guilty of any fraudulent practices in procuring the policy of insurance upon his property, such as would warrant a rescission of the insurance contract. All that is alleged is, a sinister purpose to do an unlawful act. He did nothing to induce the taking of the risk by which complainant was overreached. Indeed, it is not charged the risk was not a fair one and a proper one to be assumed. That which avoids the policy is the subsequent unlawful act of setting the building on fire. So far as it is disclosed, the contract of insurance seems to have been fairly obtained, barring the fact Gunning may have meditated a secret purpose at some future time to do an unlawful act, to the injury of complainant.
Assuredly, the act of setting the building on fire avoids the insurance contract, but it is no reason for declaring it void after loss has occurred. Had it come to the knowledge of the company Gunning intended to destroy the property, that would have authorized an immediate cancellation of the policy. Loss having occurred, it is now only a matter of defense. The company could not itself declare a rescission of the contract, nor are there any facts proven that would warrant a court of equity in declaring the policy void, as having been procured by fraud. It is too late to decree that character of...
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