The PhŒnix Ins. Co. v. Tucker

• Decision Date: 31 January 1879
• Parties: THE PHŒNIX INSURANCE COMPANYv.ABRAHAM TUCKER.
• Court: Illinois Supreme Court

92 Ill. 64

1879 WL 8479 (Ill.)

34 Am.Rep. 106

THE PHŒNIX INSURANCE COMPANY

v.ABRAHAM TUCKER.

Supreme Court of Illinois.

January Term, 1879.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of McLean county; the Hon. THOMAS F. TIPTON, Judge, presiding.

Messrs. ROWELL & HAMILTON, for the appellant.

Mr. M. W. PACKARD, for the appellee.

Mr. JUSTICE MULKEY^a1 delivered the opinion of the Court:

This is an appeal from a judgment rendered in the McLean county circuit court, in favor of appellee, and against appellant, upon a policy of insurance against loss or damage by fire, issued by the latter upon the dwelling house of appellee situated on a small fruit farm about a mile south of the city of Bloomington.

Several reasons are urged for a reversal of this judgment. It is claimed, in the first place, that “the proofs of loss were not made in accordance with the provisions of the policy.” The evidence bearing on this point shows that M. W. Packard, shortly after the destruction of the house by fire, made out proofs of loss and inclosed them to the company by mail. The company, after having examined them, returned them to Packard with two specific objections, namely:

1. They were not full enough in giving the title to the property.

2. The sketch and diagram of the building were not full enough.

Packard thereupon amended the proofs in these two respects and returned them to the company, and he swears that it is his best recollection that no further specific objections were made to them. Indeed, it does not appear that complaint of any kind was made to proofs of loss after they were amended and returned by Packard. It also further appears, that after proofs of loss had been furnished the company, in the manner just stated, appellant proffered to pay appellee $200 on account of the loss, but refused to pay more, basing its refusal on other grounds than defective proofs. Under the circumstances, we regard it as immaterial whether the proofs, as finally made out, were sufficient or not,--for whatever defects or irregularities may have occurred in making them out or amending them must be deemed to have been waived by appellant. The law is well settled, that where proofs of loss are made out and delivered to an insurance company within the time prescribed by the policy, it is its duty to point out specifically any objections it may have to the proofs as made out. Good faith and fair dealing require this to be done, and if it is not done, the company can not afterwards be heard to make such objections. It is in law estopped from doing so. And on the same principle, if, upon making out proofs of loss, the company make certain specified objections, it thereby waives all other objections not specifically pointed out; and when they are amended with a view of obviating these specified objections, it is the duty of the company, on being furnished with the amended proofs, if the amendment does not make them acceptable, to renew its objections, and if it does not do so at the time, and the assured is lulled into security until the time limited by the policy for making out proofs has expired, it will be estopped from doing so afterwards. So, if an insurance company, after proofs have been made out, refuse to pay a part or the whole of the assured's claim, basing such refusal on some other distinct ground than that of defective proofs, it will be estopped, when sued on account of the loss, from setting up as a defence that the proofs of loss were insufficient.

The principles here announced are fully recognized by this court in a number of carefully considered cases. The Great Western Insurance Co. v. Staaden, 26 Ill. 365; Insurance Co. of North America v. Hope, 58 Id. 75; Winnesheik Insurance Co. v. Schueller, 60 Id. 465; The Lycoming Fire Insurance Co. v. Dunmore, 75 Id. 14.

It is also objected, that the true state of the assured's title to the property insured was not disclosed to the company and inserted in the policy at the time the insurance was effected, as required by one of the conditions of the policy. The evidence shows that the insurance was originally effected through Beal, as agent of the Bloomington Insurance Company, and that a policy was first issued to the assured by that company, but was subsequently, through the agency of Beal, and by consent of the parties, canceled, and the policy sued on issued in its stead.

The testimony of Abraham Tucker, which is uncontradicted and unquestioned, shows that Beal was not only an agent for the Bloomington Insurance Company at the time the policy was issued by that company, but was also an agent of appellant at the time the policy sued on was issued by defendant.

It further appears, from his testimony, that when the exchange of policies was made, witness went over to the office of appellant with Beal, and the matter of appellee's title was there talked over and fully explained in the presence of Lambert & Pillsbury, who seem also to have been acting on behalf of appellant. At any rate Lambert subsequently brought the policy out to appellee's house and delivered it to him. But whether Lambert & Pillsbury were agents of the company or not is immaterial, for, without question, Beal, through whom the insurance was effected, was such agent. The nature and condition of appellee's title were, as already stated, fully made known and explained to him on more than one occasion, and if they were not properly inserted in the policy it was not appellee's fault. He had nothing to do with the making out of the policy. That was done by Beal as appellant's agent, and if the policy was not made to speak the facts, appellant alone is responsible for it and can not now be heard to complain on that ground. The Atlantic Insurance Co. v. Wright, 22 Ill. 462; The Commercial Insurance Co. v. Spankneble, 52 Id. 53.

Again, it is objected, that in violation of a condition in the policy, the house, at the time of its destruction by fire, was vacant and unoccupied. If this be true as a fact, it is fatal to appellee's right of recovery, and the judgment of the court below must, for that reason if no other, be reversed. The policy in question, among other provisions, contains the following: “And it is agreed and declared to be the true intent and meaning of the parties hereto, that if the above mentioned premises * * * be vacant or unoccupied or not in use, unless agreed to by this corporation in writing upon this policy, from thenceforth so long as the same shall be vacant or unoccupied, or not in use, or the hazard otherwise increased, * * * this policy shall be of no force or effect.”

It appears, from the evidence, that on the night of November 15, 1874, the same being Sunday, the dwelling house covered by the policy was destroyed by fire. The destruction was total, and evidently the work of an incendiary. On the Thursday night previous, an unsuccessful attempt had been made to destroy it in the same way, but it was discovered by appellee in time to extinguish the fire before any serious damage occurred.

It further appears, from the evidence, that some time before the loss, appellee had determined to leave the premises and move to Nevada, and for several days before the fire he was actively engaged in making preparations to do so. He had already rented the premises to another, who was to have taken possession on Saturday, but in consequence of rain he was unable to do so. On Friday preceding the fire appellee made sale of such articles of property as he did not wish to take with him. On the evening of that day his family left the premises without any intention of returning, at least until after appellee's return from Nevada, where he subsequently went. Appellee remained on the premises Friday and Friday night, having retained with him a bed, bedding and some other articles of household goods of...