The Philadelphia Fire Ins. Co. v. the Cent. Nat'l Bank of Chicago

• Decision Date: 30 April 1878
• Citation: 1 Ill.App. 344,1 Bradw. 344
• Parties: THE PHILADELPHIA FIRE INSURANCE COMPANY ET AL.v.THE CENTRAL NATIONAL BANK OF CHICAGO ET AL.
• Court: United States Appellate Court of Illinois

1 Ill.App. 344

1 Bradw. 344

THE PHILADELPHIA FIRE INSURANCE COMPANY ET AL.

v.THE CENTRAL NATIONAL BANK OF CHICAGO ET AL.

Appellate Court of Illinois, First District.

April Term, 1878.

OPINION TEXT STARTS HERE

Appeal from the Superior Court of Cook county; the Hon. Samuel M. Moore, Judge, presiding.

Mr. Henry C. Whitney, and Mr. E. R. Bowen, for appellants; against the jurisdiction of a court of equity to compel the insurance companies to try their cases in that forum, and contending for the right to a trial at law, cited Rev. Stat. Chap. 22, § 40.

That as to the insurance companies the action was premature, the losses by the terms of the policies not being due: Nickerson v. Babcock, 29 Ill. 497; Daniels v. Osborn, 71 Ill. 169.

That the policies were void on account of concealment of facts material to the risk: Day v. Charter Oak Ins. Co. 4 Benn. Ins. Cas. 727; Boggs v. Am. Ins. Co. 4 Benn. Ins. Cas. 464; Phillips on Insurance, 277; Gould v. Ins. Co. 47 Me. 403; Carpenter v. Ins. Co. 1 Story, 57; Columbian Ins. Co. v. Lawrence, 2 Pet. 25; Smith v. Williams, 2 Caines' Cas. 110; Lee v. Ins. Co. 3 Gray, 583; 1 Phillips on Insurance, 304; 4 Benn. Ins. Cas. 481.

That the assured must own the property or have an insurable interest therein: Busch v. Sinnissippi Ins. Co. 28 Ind. 64; Sawyer v. Mayhew, 51 Ill. 398; Fowler v. New York Ins. Co. 26 N. Y. 422; Peabody v. Washington Ins. Co. 20 Barb. 339; Freeman v. Fulton Ins. Co. 38 Barb. 247; Tallman v. Atlantic Ins. Co. 29 How. Pr. 71; Sweeney v. Franklin Ins. Co. 20 Pa. St. 337.

If the assured have no interest, it will be a mere wager policy, and void: Howard v. Ins. Co. 3 Denio, 303; In the matter of Kip, 4th ed. Ch'y, 94; Ætna Ins. Co. v. Tyler, 16 Wend. 285; Trader Ins. Co. v. Robert, 9 Wend. 404; Power et al. v. Ins. Co. 19 La. 23; Tittemore v. Ins. Co. 20 Vt. 546.

That a policy of insurance is a personal contract of indemnity with the insured: McCarty v. Com. Ins. Co. 17 La. 365; Leavitt v. W. M. & F. Ins. Co. 7 Rob. 351; Marchesseau v. Ins. Co. 1 Rob. 438; Wyman v. Prosser, 36 Barb. 368; Strong v. Ins. Co. 10 Pick. 49; Wilson v. Hill, 3 Met. 66; Carpenter v. Ins. Co. 16 Pet. 495; Adams v. Ins. Co. 29 Me. 292; 3 Benn. Ins. Cas. 31.

Evidence offered tending to show that had the underwriters known the premises contained machinery for carrying on a business so hazardous as to be uninsurable, they would not have taken the risk, should have been admitted: Webber v. Eastern R. R. Co. 2 Met. 147; Luce v. Dorchester Ins. Co. 105 Mass. 297; Hawes v. New England Ins. Co. 2 Curtis C. C. 229; Mulvey v. Mohawk Valley Ins. Co. 5 Gray, 541; Merriam v. Middlesex Ins. Co. 21 Pick. 162; Daniels v. Hudson Riv. Ins. Co. 12 Cush. 416; McLanahan v. Universal Ins. Co. 1 Pet. 170; Mitchell v. Home Ins. Co. 32 Iowa, 421; Kern v. St. L. Mut. Ins. Co. 40 Mo. 19.

Mr. Henry J. Peet and Mr. Perry H. Smith, Jr., for appellants; that the answers having denied any indebtedness, a court of chancery had no jurisdiction to try that traverse, cited Sherwood v. Ins. Co. 12 How. 136; Hitt v. Ormsbee, 14 Ill. 233; Rodman v. Henry, 17 N. Y. 484; Walker's Ch. R. 2; Story's Eq. Jur. § 74; N. Y. Code § 299; Rev. Stat. N. J. 76; Rev. Stat. N. C. 209; 3 Corwin (Ohio) Chap. 1,202; Welch v. P. Ft. W. & C. R. R. Co. 11 Ohio 573.

That the insured cannot recover an amount greater than their insurable interest: Smith v. Columbia Ins. Co. 17 Pa. St. 253; Strong v. Ins. Co. 10 Pick.; Catron v. Ins. Co. 6 Humph. 176; Reed v. Mut. Safety Ins. Co. 3 Sandf. 54; Smith v. Williams, 2 Caines' Cas. 110.

That there were material concealments regarding title and interest: Catron v. Ins. Co. 6 Humph. 176; Columbian Ins. Co. v. Lawrence, 2 Pet. 25; Lycoming Ins. Co. v. Stockbomer, 2 Casey, 199; Lycoming Ins. Co. v. Mitchell, 48 Pa. St. 368; Elliott v. Lycoming Ins. Co. 66 Pa. St. 22; Lee v. Howard Ins. Co. 11 Cush. 224; Com. Ins. Co. v. Mehlman, 48 Ill. 313; Wethrall v. City Ins. Co. 16 Gray, 276; Tomlinson v. Monmouth Mut. Ins. Co. 47 Me. 232; Flanders on Fire Insurance, 68.

That the suit was prematurely brought, the loss not being then due and payable by the terms of the policies: Chamberlain v. McCall, 2 Yeates, 281; Bryant v. Ins. Co. Pick. 131; Davis v. Davis, 49 Me. 282.

Upon the question of payment of interest decreed by the court: Delonguemare v. Ins. Co. 2 Hall, 589; Nevins v. Rockingham Ins. Co. 25 N. H. 22.

Messrs. Mattocks & Mason and Mr. Geo. W. Smith, for the Central Nat. Bank, appellee; contending for the equitable jurisdiction of the court, cited Rev. Stat. 1874, 203; Gage v. Smith, 79 Ill. 219; Bramhall v. Ferris, 14 N. Y. 45; Donovan v. Finn, 1 Hopk. Ch. 59; Hadden v. Spader, 20 Johns. 554; Pettit v. Chandler, 3 Wend. 621; Bailey v. Burton, 8 Wend. 339; Tappan v. Evans, 11 N. H. 326; Beck v. Burdett, 1 Paige Ch. 309; Weed v. Pierce, 9 Cowen, 722; Durand v. Hankesson, 39 N. Y. 287; Grant v. Redd, 4 B. Mon. 178.

A court of equity having properly acquired jurisdiction over the subject matter, will do final and complete justice between the parties: Taylor v. Mer. Fire Ins. Co. 9 How. 405; Motteaux v. London Assurance Co. 1 Atkins, 545; Perkins v. Washington Ins. Co. 4 Cowen, 646; 1 Duer, 66; Fireman's Ins. Co. v. Powell, 13 B. Mon. 311; Phœnix Ins. Co. v. Mitchell, 67 Ill. 43; Wood on Fire Insurance, 32.

Against the objection that the suit was prematurely brought, because the sixty days for payment of losses had not expired: Ætna Ins. Co. v. Maguire, 51 Ill. 342; Aurora Fire Ins. Co. v. Eddy 55 Ill. 213; Ill. M. F. I. Co. v. Archdeacon, 82 Ill. 236.

That the policies were not void by reason of non-insurable interest in the assured, and because hazardous non-insurable material and machinery were used in the building: Phœnix Ins. Co. v. Mitchell, 67 Ill. 43; Reaper City Ins. Co. v. Jones, 62 Ill. 458; Insurance Co. v. Slaughter, 12 Wall. 404; Aurora Ins. Co. v. Eddy, 49 Ill. 106; Ins. Co. of North America v. McDowell, 50 Ill. 120; New England F. & M. Ins. Co. v. Wetmore, 32 Ill. 221; Schmidt v. Peoria M. & F. Ins. Co. 41 Ill. 296.

That a clause in a policy forbidding a sale of the property is not affected by a mortgage of the same: Commercial Ins. Co. v. Spankneble, 52 Ill. 53; Smith v. Mutual F. Ins. Co. 50 Me. 96; Masters v. Madison Ins. Co. 11 Barb. 624; Rollins v. Columbia Ins. Co. 5 Foster, 204; Ayers v. Hartford Ins. Co. 17 Iowa, 180; Fireman's Ins. Co. v. Cong. Rodeph Sholom, 80 Ill. 558; Aurora F. Ins. Co. v. Eddy, 55 Ill. 213; Lycoming F. Ins. Co. v. Jackson, 83 Ill. 302.

That if any of the conditions in the policy had been violated, it was the duty of the company to make known the ground of objection at the time of adjustment of the loss: Atlantic Ins. Co. v. Wright, 22 Ill. 462; Peoria F. & M. Ins. Co. v. Lewis, 18 Ill. 553.

As to what constitutes an insurable interest: Commercial Ins. Co. v. Spankneble, 52 Ill. 53; Rockford Ins. Co. v. Nelson, 65 Ill. 415; Atlantic Ins. Co. v. Wright, 22 Ill. 462; Mitchell v. McDougall, 62 Ill. 498; Phœnix Ins. Co. v. Mitchell, 67 Ill. 43; Vansant v. Allmon, 23 Ill. 30.

The pretended chattel mortgages were void as against creditors: McDowell v. Stewart, 9 Chicago Legal News, 181; Frank v. Miner, 50 Ill. 444; Porter v. Dement, 35 Ill. 478; Gross' Stat. 67, §§ 2, 3.

That the property in dispute is presumed to belong to the husband, and the burden of proof is upon the wife to show affirmatively that it is her separate property: Jassoy v. Delius, 65 Ill. 469; Indianapolis R'y Co. v. McLaughlin, 77 Ill. 275; Reeves v. Webster, 71 Ill. 307; Patton v. Gates, 67 Ill. 164; Wilson v. Loomis, 55 Ill. 352; Elijah v. Taylor, 37 Ill. 247; Wortman v. Price, 47 Ill. 22; Brownell v. Dixon, 37 Ill. 187; Seitz v. Mitchell, 4 Otto, 580; Kahn v. Wood, 82 Ill. 219; Sweeney v. Damron, 47 Ill. 450; McLourie v. Partlow, 53 Ill. 340; Haines v. Haines, 54 Ill. 74; Bridgeford v. Riddell, 55 Ill. 261.

That a subsequent creditor may attack a conveyance from husband to wife if the conveyance was made to defraud creditors and the husband insolvent at the time: Bridgeford v. Riddell, 55 Ill. 261; Moritz v. Hoffman, 35 Ill. 553; Phelps v. Curts, 80 Ill. 109; Mills v. Morris, 1 Hoffman's Ch. 419; Richards v. Smallwood, Jacobs, 556; Rigway v. Underwood, 4 Wash. C. C. 137; Sexton v. Wheaton, 8 Wheat. 229; Savage v. Murphy, 34 N. Y. 508; Case v. Phelps, 39 N. Y. 164; 10 N. Y. 227; Seward v. Jackson, 8 Cowen, 406; 19 Barb. 450; 7 Bos. 480; Jones v. King, 10 Chicago Legal News, 275; Bump on Fraudulent Conveyances, 331; Hook v. Monroe, 17 Iowa, 197; Rev. Stat. 251.

That the insurance companies were liable to pay interest from the time the money became due: Knickerbocker Ins. Co. v. Gould, 80 Ill. 388; Peoria F. & M. Ins. Co. v. Lewis, 18 Ill. 553.

As to testimony of the inflammable nature of the materials used in the building, and that they did not increase the hazard: Aurora Fire Ins. Co. v. Eddy, 55 Ill. 213; Wood v. Northwestern Ins. Co. 46 N. Y. 421; Wood on Fire Insurance, 366.

That the rights of the intervening petitioners were subordinate to those acquired by this appellee: 2 Johns. Ch. 156; 1 Johns. Ch. 302, 575; 8 Chicago Legal News, 379.

Upon the question whether the machinery attached to the building was real or personal property: Swift v. Thompson, 9 Conn. 63; Gale v. Ward, 14 Mass. 352; Walker v. Sherman, 20 Wend. 636; Sheldon v. Edwards, 35 N. Y. 283; Ford v. Cobb, 20 N.Y. 348; Dunham v. Sankey, 38 Iowa, 369; 2 Kent Com. 409; Sowdan v. Craig, 26 Iowa, 156; Ballou v. Jones, 37 Ill. 95; Winslow v. Mer. Ins. Co. 4 Met. 306; Kelly v. Austin, 46 Ill. 156; Arnold v. Crowder, 81 Ill. 56; Jones on Mortgages, 444.

Messrs. Grant & Swift, for Travelers Insurance Co., appellee; argued that the court had jurisdiction, and would retain it for all purposes, and cited 2 Story's Eq. 1216 b.; Steere v. Hoagland, 39 Ill. 264; Neute v. Duke of Marlborough, 2 Myl. & C. 407; Hodden v. Spader, 20 Johns. 554; Craig v. Hone, 2 Edw. Ch. 566; 2 Barb. Ch. Pr. 147; Rev. Stat. Chap. 22, § 49; Savage v. Berry, 3 Scam. 545; ...