Western Assurance Co. v. Mason

• Decision Date: 31 October 1879
• Citation: 5 Bradw. 141,5 Ill.App. 141
• Parties: WESTERN ASSURANCE COMPANYv.CLARA S. MASON.
• Court: United States Appellate Court of Illinois

5 Ill.App. 141

5 Bradw. 141

WESTERN ASSURANCE COMPANY

v.CLARA S. MASON.

Appellate Court of Illinois, First District.

October Term, 1879.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding. Opinion filed February 4, 1880.

Messrs. HITCHCOCK, DUPEE & JUDAH, for appellant; upon the question of non-occupancy of the premises, cited Whitney v. Black River Ins. Co. 72 N. Y; Keith v. Quincy Mut. Ins Co. 10 Allen, 72; Ashworth v. Builders Ins. C. 112 Mass. 422, Harrisburg v. Fitchburg Ins. Co. 124 Mass. 126; Sleeper v. Ins. Co. 56 N. H. 401; Paine v. Agricultural Ins. Co. 5 N. Y. 619; American Ins. Co. v. Padfield, 78 Ill. 167.

That the defenses alleged could be shown under the general issue: Gould's Pl. 329; Stephen's Pl. 160; 1 Chitty's Pl. *477; Brenman v. Egan, 4 Taunt. 165.

Messrs. TENNEY & FLOWER, for appellee; as to what will be considered occupancy, and that it is for the jury to determine, cited Paine v. Agricultural Ins. Co. 5 N. Y. 619.

The defenses should have been specially pleaded: Ill. Fire Ins. Co. v. Stanton, 57 Ill. 354; Clay F. & M. Ins. Co. v. Wusterhausen, 75 Ill. 285; Andes Ins. Co. v. Fish, 71 Ill. 620; Herron v. Peoria F. & M. Ins. Co. 28 Ill. 235; Knickerbocker Ins. Co. v. Tolman, 80 Ill. 106.

BAILEY, P. J.

This was an action of assumpsit, brought by Clara S. Mason for the use of the German National Bank of Chicago, against the Western Assurance Company, upon a policy of insurance issued by the defendant to the plaintiff. Said policy bore date November 15, 1876, and the defendant thereby insured the plaintiff for the term of three years from that date against loss or damage by fire, in the sum of $2,000 on her dwelling house, in the town of Lake View, and $1,000 on her household furniture, etc., contained therein. On the 16th day of April, 1877, said building and contents were totally destroyed by fire. Proofs of loss were duly furnished, and the defendant failing to pay said loss, this suit was brought for its recovery. On the trial in the court below, the jury found a verdict for the plaintiff, and judgment was rendered thereon against defendant for the sum of $3,330 and costs, being for the full amount of the policy and interest up to the date of the verdict. The defenses interposed were based upon certain conditions of the policy, which, omitting those provisions not material to the present controversy, are as follows:

“The application, survey, plan or description of the property herein insured, referred to in this policy, shall be considered a part of this contract, and a warranty by the assured during the time this contract is kept in force; and any false representation by the assured of the condition, situation or occupancy of the property, or any omission to make known every fact material to the risk, or an over-valuation, or any misrepresentation whatever, either in a written application or otherwise; or if the assured shall have, or shall hereafter make any other contract of insurance, whether valid or not, on the property hereby insured, or any part thereof, without the consent of this company written hereon; or if the above-mentioned premises shall at any time be occupied or used so as to increase the risk, or the risk be increased by any means whatever within the control of the assured; or if the premises become unoccupied, and so ren ain for more than thirty days, without the assent of this company endorsed hereon; or if the interest of the assured in the property, whether as owner, factor, agent, mortgagee, lessee, or otherwise, be not truly stated in this policy, then, in every such case this policy shall become void. If the interest of the assured in the property be any other than the entire, unconditional and sole ownership of the property for the use and benefit of the assured, it must be so represented to the company, and so expressed in the written part of this policy, otherwise this policy shall be void.”

The only pleas filed by the defendant were the general issue and a special plea averring that after the execution of the policy the premises insured became unoccupied, and so remained for more thirty days, without the assent of the defendant, and were so unoccupied at the time of the loss. Under these pleas, in addition to the defense set up in the special plea, the defendant sought to avail itself of the following defenses, viz: 1, other insurance on the same property not consented to by the defendant; 2, a mortgage on the premises not disclosed by the assured to the company; and 3, a change in the occupancy of the premises having a tendency to increase the risk. It is insisted by the plaintiff that these three defenses should have been specially pleaded, and that they cannot be set up or proved under the general issue, and such seems to have been the holding of the court below.

Mr. Chitty in his treatise on pleading, says that when a defendant insists that no such contract as stated in the declaration has in fact been made, he must plead the general issue. Under that plea, also, he may give in evidence various matters of defense, although they admit that a contract has in fact been made, but deny that in law it is obligatory upon the defendant. Hence, under the general issue, any matter which shows that the plaintiff never had a cause of action, may be given in evidence, and also most matters in discharge of the action, and which show that at the time of the commencement of the suit the plaintiff had no subsisting cause of action. Chitty on Pleading 476, 478.

The rule thus stated has been repeatedly recognized and applied by our Supreme Court. Thus in Wilson et al. v. King, 83 Ill. 232, the court say: “In an action of assumpsit, the general rule is that a defendant may give in evidence under the general issue any matter which shows that he was not indebted to the plaintiff when the action was brought. And this is true whether the defense be that the defendant was never indebted to the plaintiff, or that the liability has been extinguished after it was incurred. Tender, the Statute of Limitations, alien enemy, and some other defenses, must be especially pleaded.” So, in Miner v. Moore, 41 Ill. 273, it is said: “In an action of assumpsit, almost any defense showing the satisfaction or discharge of the debt, may be shown under the general issue.”

The case of the Rockford Ins. Co. v. Nelson, 65 Ill. 415, was an action of assumpsit upon a policy of insurance against fire, and the defendant pleaded the general issue and a large number of special pleas. The report of the case fails to state, specifically the nature of the several defenses thereby set up, but the writer having been one of the counsel for the defendant in that case, and having before him a printed abstract used in the Supreme Court, is able to state them of his own knowledge. They were: breach of warranty by the plaintiff as to her title to the premises insured; breach of warranty as to the situation and location of surrounding buildings; false and fraudulent over-valuation of the property in the application; breach of warranty as to the use and occupation of the premises; the use...