The Norwich Fire Ins. Co. v. Boomer

• Decision Date: 30 September 1869
• Citation: 4 Am.Rep. 618,52 Ill. 442,1869 WL 5471
• Parties: THE NORWICH FIRE INSURANCE COMPANYv.GEORGE BOOMER.
• Court: Illinois Supreme Court

52 Ill. 442

1869 WL 5471 (Ill.)

4 Am.Rep. 618

THE NORWICH FIRE INSURANCE COMPANY

v.GEORGE BOOMER.

Supreme Court of Illinois.

September Term, 1869.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Chicago; the Hon. WILLIAM A. PORTER, Judge, presiding.

The opinion states the case.

Mr. O. B. SANSUM, for the appellants, insisted that when a mortgagee applies for insurance, he must disclose the nature and extent of his interest, citing Columbia Insurance Co. v. Lawrence, 2 Peters, 49; Marshall on Ins. p. 789, b. 4. ch. 2; 10 Peters, 507; Carpenter v. Providence Washington Insurance Co. 16 Peters, 495.

Messrs. WAITE & CLARKE, for the appellee.

The nature or amount of the interest held by the assured on the property insured, in the absence of specific inquiries as to the nature of such interest, and of conditions in the policy requiring it to be stated or disclosed, need not be communicated to the insurer, or stated in the policy itself, and the assured, in case of loss, can recover to the extent of any interest he may have in the subject matter insured, however indirect; and it is in general sufficient, if the subject matter of the insurance and the nature of the risk are set forth in the policy, without any mention of the nature or character of the interest for which the insurance is intended as a protection. Angell on Ins. sec. 182; Phillips on Ins. 3d ed. vol. 1, page 223; Strong v. Manufacturers' Ins. Co. 10 Pick. 40; Protection Ins. Co. v. Harmer, 22 Ohio, 2 vol. N. S. 474; Franklin Fire Ins. Co. v. Coutes, 14 Md. 285; Fletcher v. Com. Ins. Co. 18 Pick. 419; Tyler v. Ætna Ins. Co. 12 Wend. 507; Turner v. Burrows, 5 Wend. 546; Lock v. North American Ins. Co. 13 Mass. 61; Phelps v. The Gebhard Fire Ins. Co. 9 Bosw. N. Y. 404; Mutual Ins. Co. v. Deale, 18 Maryland, 26; Carter v. Humboldt Fire Ins. Co. 12 Iowa, 287; Caruthers v. Sheddon, 6 Taunton, 16; Traders' Ins. Co. v. Robert, 9 Wend. 408, 409; Angell on Fire and Life Ins. ch. 8, secs. 182, 183, 184, 185 and 186.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of assumpsit, brought by appellee, in the superior court of Chicago, against appellants, on a policy of insurance. The policy was issued and bears date on the third of April, 1867, and covers a frame packing and slaughter house, with the alley or pens attached, known as Boyington, Cash & Wilder's Slaughter and Packing House, in Chicago; also the engine and boiler, machinery and pipes, hoisting machine and belts, and lard rendering tanks, water tanks and cooling vats, all contained in the building, for one year from that date, and insuring appellee against all immediate loss by fire, not exceeding $4000.

The policy contained several conditions, among which are, first, that the company shall not be liable if the applicant has made any erroneous representations materially affecting the risk; nor for loss if there was any prior or subsequent insurance without the written consent of the company; nor for loss of property owned by any other party, unless such interest is stated in the policy; second, the policy to become vitiated if the insured premises should become vacated by the removal of the owner or occupant for more than twenty days; third, the assured not to recover of the company any greater portion of the loss or damage than the amount insured bears to the whole sum insured on the property. Within the year the property was partly destroyed by fire, and this action was brought to recover for the loss. After the fire, appellee took possession of the portion not destroyed, and sold it, and after deducting expenses, it yielded the sum of $1070. A trial was had, resulting in a verdict in favor of appellee, for $2757.56, upon which judgment was rendered by the court.

It appears that appellee, at the time the application was made, by the broker, only held a chattel mortgage on the property insured, and it is urged by appellants that, by failing to disclose the nature of his interest, the policy became void; that he was bound to disclose this as a material fact, and its suppression vitiated the policy. That he was bound to disclose all facts material to the risk, is no doubt true; but, in what respect it could be material that the company should know whether the interest was that of mortgagor or mortgagee, we are at a loss to perceive. It was, no doubt, material that he should have had an insurable interest, but it has, so far as we can find, never been held that the interest of a mortgagee was not of that character. All that he was bound to disclose, unless interrogated, was, that he had an insurable interest, and this he did, and in that the representations of his application are true. He was not asked by the company to state the nature of his title, nor did the terms of the policy require that he should. If the company had deemed it material, they would have propounded the necessary question to learn the fact, and inserted a clause that the policy should be void if the nature of his interest had not been fairly disclosed. Had the question been asked, and appellee had given a false statement in answer, then, it may be, a different question would have been presented.

That the company did not regard it material is clearly shown by the policy itself. We find, in limiting their liability, they say they will not be liable “for loss for property owned by any other party, unless the interest of such party be stated in this policy.” From this condition it is apparent they deemed it unnecessary appellee should disclose his own interest. It, by implication, says he need not, and no other inference can be drawn from the language. It, however, discloses the fact that the company did regard it material, where one person insures the property of another, that the assured should state the nature of the interest of the owner in the property. Neither reason, authority, nor the contract of assurance, so far as we can see, required appellee, unless interrogated, to state the nature of his interest in the property insured.

It is again urged that, inasmuch as the mortgagors paid the debt to appellee before the recovery in the court below, and the mortgagee has sustained no loss, he is not entitled to recover. Had appellants paid this loss before the mortgagors paid the debt to appellee, then the question of their right to subrogation would have been presented for consideration; but, inasmuch as appellants had...