The Williamsburg City Fire Ins. Co. v. Elizabeth S. Cary.
| Decision Date | 30 September 1876 |
| Parties | THE WILLIAMSBURG CITY FIRE INSURANCE CO.v.ELIZABETH S. CARY. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.
This was an action of assumpsit, by the appellee, against the appellant, to recover on a policy of insurance for a loss of a lot of millinery goods, valued at $1600. A trial was had, resulting in a verdict and judgment for the plaintiff.
Messrs. CAULFIELD, HARDIN & PATTON, and Mr. J. H. BINCKLEY, for the appellant.
Messrs. JOHNSTON, ROGERS & APPLETON, for the appellee.
When the risk was assumed by the insurance company the goods covered by the policy were situated on the ground floor in building No. 88 State street, but before the destruction by fire the assured had removed them to No. 368 Wabash avenue. It is conceded no previous consent had been given the assured for the removal, but whether the company subsequently consented to carry the risk on the goods, in the new location, was one of the contested questions on the trial. On this point the testimony was conflicting, but if the jury gave credence to the witness Underwood, it was sufficient to warrant the finding in favor of plaintiff.
Upon this question in the case, defendant asked the court to instruct, the description of the location of the goods insured amounted to a warranty they should remain in the same situation, unless appropriate words, elsewhere expressed in the policy, manifested an intention to cover the property wherever situated; but if no such words were found, and the goods were removed without consent first had and obtained, such removal entirely discharged the insurance. We are inclined to think the substance of all that is accurately stated in the instruction asked was contained in others that were given on behalf of defendant, but the court was justified in refusing it, for the reason, the latter clause is not a correct expression of the law. It was not indispensable that consent should be first had and obtained to the removal of the goods. A subsequent ratification of the act, with a full knowledge of all the facts, is equivalent to a precedent consent. After the goods had been removed to the place where they were destroyed, the company's local agent was notified of such removal, and was asked to consent to carry the risk in the new location. This fact is not controverted, but whether such agent did in fact give his consent is a matter of contention between the parties. As we have seen, the finding was for plaintiff, and that ought to be regarded as conclusive. At all events, the company, when notified of the change in the location of the goods, did not elect to cancel the policy. Authority was reserved to either party to rescind the insurance contract. On every principle of justice, the non-action of the company, on receiving information of what had been done, ought to be regarded as an election not to declare the policy forfeited on account of the removal of the goods. Equitably, if the company did not desire to carry the risk longer, because of the change in the location of the goods, it ought, in fair dealing, to have returned the unearned premium and rescinded the insurance contract. It might well treat the removal of the goods as a breach of the warranty implied from a description of the location of the goods, and declare the policy forfeited. But no action was taken, and after notice, the assured might infer the company was willing to carry the risk notwithstanding the change in the location of the property. Had the company canceled the policy, as was its privilege, the assured could, doubtless, have been able to procure other...
To continue reading
Request your trial
-
Gorham v. Pacific Mut. Life Ins. Co.
... ... 866 ... In ... Omaha Fire Ins. Co. v. Dierks, 43 Neb. 569, 61 N.W ... 745, it was ... Illinois ... case, Williamsburg City Fire Ins. Co. v. Cary, 83 ... Ill. 453: "When an ... ...
-
Lauhoff v. Automobile Ins. Co. of Hartford, Conn.
...Ins. Co., 159 Mo.App. 436, 141 S.W. 15; Hulen v. National Fire Ins. Co. of Hartford, 80 Kan. 127, 102 P. 52; Williamsburg City Fire Ins. Co. v. Cary, 83 Ill. 453; Cech v. Firemen's Ins. Co., 201 Ill.App. 321; Maryland Fire Ins. Co. v. Gusdorf, 43 Md. 506; Kor v. American Eagle Fire Ins. Co.......
-
Clark Millinery Co., Inc. v. National Union Fire Ins. Co.
... ... delay. What is said in Insurance Co. v. Cary, 83 ... Ill. 453, is still more to the point: "What reason can ... be ... ...
-
Georgia Home Ins. Co. v. Stein
...it, it remains liable for the loss. A ratification of the act with full knowledge of all the facts, is equivalent to a precedent consent. 83 Ill. 453. The is the same as that governing as to other or concurrent insurance. The company is bound either to indorse consent upon the policy, or ca......