| Ill. | Dec 22, 1897
delivered the opinion, of the court:
The particular ground of defense relied upon by appellant in this case as reason why appellee is not entitled to recover under her policy for the loss of the property destroyed by fire is, that at the time the application for insurance was made and the policy issued there was a chattel mortgage on a portion of the furniture, no mention of which was made in the application, nor was such fact disclosed in any manner, unless it was to Smith, the party who solicited the insurance and delivered to her thi policy.
Under one of the conditions of the policy it is provided that if there be a mortgage or other incumbrance on the property, whether inquired about or not, it must be so represented to the company and so expressed in the written part of the policy, otherwise the policy should be void. Smith, who solicited the insurance from appellee in this case, was informed, at the time the application was made, there was a mortgage on a small portion of the furniture. It is contended, however, Smith was not the agent of the appellant, and therefore notice to him was not binding upon the company. The question as to whether or not Smith was the agent of the appellant company was one of fact, and was an issue before the jury in the trial court. He solicited the insurance from appellee, took her application in the appellant company, and in a few days returned to her the policy in question, for which she paid a premium of $25. She saw no one in connection with the transaction or the delivery of the policy to her except Smith. In an affidavit presented by appellant on the trial of this case it was stated “it expected to prove by Charles B. Smith, acting as agent of said company in obtaining the policy of insurance sued on in this case,” that appellee made certain statements, etc. There being evidence tending to establish the fact that Smith represented the appellant company, and no motion having been made at the close of plaintiff’s testimony to instruct the jury to find for the defendant, it was proper for the court to submit to the jury, as one of the issues of fact in the case, whether Smith was an agent of the appellant company. This fact having been settled by the verdict of the jury and the judgments of the trial and Appellate Courts, it follows we must consider the case on that basis.
Where the insured in a fire insurance company makes statements to the agent of the company who solicits the insurance, of facts which might, under the terms and conditions of the policy, avoid it if omitted, and the agent does not state such facts, the insured will be as fully protected as though such facts or conditions had been noted in the application or the policy. In other words, notice to an agent of an insurance company of facts which might otherwise avoid the policy will be considered as notice to the company and as having been waived by the company. (Home Ins. Co. of New York v. Mendenhall, 164 Ill. 458" date_filed="1897-01-18" court="Ill." case_name="Home Insurance Co. of New York v. Mendenhall">164 Ill. 458, and cases cited.) It follows, therefore, that the question of fact having been established Smith was the agent or was acting for the appellant company, and he having been notified of the fact that the chattel mortgage was in existence on a portion of the property insured, appellant could not take advantage of the clause in the policy before referred to, and avoid payment on that account.
There was no error in the admission or exclusion of evidence or in the instructions given by the trial court to the jury.
The judgment of the Appellate Court must be affirmed.
Judgment affirmed.