94 Ill. 494 | Ill. | 1880
delivered the opinion of the Court:
This was an action of assumpsit, brought by Mary G. McKee against the Germania Fire Insurance Company, on a policy of insurance issued December 24, 1877, by which the plaintiff was insured against loss by fire for one year on a hay barn, cattle sheds, and a large quantity of farming implements, situated on a certain quarter section of land in Champaign county. A trial of the cause in the circuit court resulted in a judgment in favor of the plaintff. An appeal was taken to the Appellate Court, where the judgment was affirmed. To reverse the judgment of the Appellate Court this writ of error was sued out by the insurance company.
In the argument of plaintiff in error the position is taken that a considerable portion of the insured property belonged to Thomas D. McKee, the husband of the plaintiff. This is a question of fact which we ■ can not inquire into. The Appellate Court having affirmed the judgment of the circuit court, of necessity found that the evidence established the ownership of the property in the plaintiff. Under the statute that finding is conclusive, and can not be reversed'on appeal or error.
It appears, from the record, that on the 18th day of December a policy was issued on the property in question, No. 20,021, and on account of some mistake contained therein it was surrendered, and the policy in suit, No. 20,026, issued in its place.
On the trial the defendant offered to show that its agent, Hardin, who obtained the risk and issued the policy, had not reported the cancellation of the first policy nor the issuance of the other one, and that he had not reported the issuance of special permits to plaintiff for “ steam hay pressing ” for ten days, etc. This testimony was offered for the purpose of showing a collusion between the company’s agent, Charles E. Hardin, who issued the policy, and the plaintiff. The court excluded the evidence, and the decision is relied upon as error.
If the court had permitted each fact to be proven which defendant offered to prove, we fail to see how a collusion could be established by such facts. This agent was clothed with full authority from the company to issue the policy, and also the special permits, and the fact that he neglected to discharge his duty to the company would not tend to show collusion between him and the assured. The offered evidence did not in the least tend to connect plaintiff with the misconduct of the company’s agent, and unless she was in some way connected with his misconduct she could not be prejudiced by anything he might do or omit to do.
The defendant also offered in evidence policy No. 20,021, which had been held by plaintiff for six days and returned and cancelled, the printed portions of which were in all respects like the one in suit. This evidence was offered for the purpose of showing that plaintiff had notice, by the terms of the printed policy, that the authority of the agent was limited. If it be conceded that this evidence had any bearing on the question, the policy in suit, which was read in evidence, when it was accepted by the plaintiff give her all the notice that the cancelled one did, and if the court committed a technical error in excluding the evidence, it did defendant no harm.
It is also contended that the court erred in excluding from the jury the deed of assignment of Thomas D. McKee to William B. Webber. This evidence was irrelevant. Had there been evidence fairly tending to show that the hay and other property embraced in the assignment was the same in-eluded in the policy of insurance, then the assignment might have been competent evidence, but there was no such proof.
It is next urged that the plaintiff was not entitled to a verdict for the reason that the barn insured was at the time incumbered, and plaintiff had warranted that the property Avas clear of incumbrance. In the application this question is asked: “What incumbrance is now upon the property?” Answer: “None.” The policy contains a provision that if the property is incumbered by any lien, whether by deed of trust, mortgage or otherwise, * * * the policy shall be void. There is no dispute in regard to the fact that the land upon which the barn Avas erected was mortgaged, but it appears that the agent of the insurance company prepared the application for the policy, and wrote the answers to the various questions therein propounded, himself; that he was fully informed in regard to the mortgage on the property, and said to the plaintiff, “it did not amount to anything.”
Where a policy has been issued under such circumstances, and there is no collusion between the assured and the agent of the company, it is well settled in this and other courts that the insurance company is estopped from insisting upon the defence of warranty. The Atlantic Ins. Co. v. Wright, 22 Ill. 473; Mutual Ins. Co. v. Chesnut, 50 id. 116; Andes Ins. Co. v. Fish, 71 id. 620.
Where the application is prepared, signed and presented by the owner of the property, the insurance company has the right to rely upon the truth of the statements therein contained, and if the statements are false in a material point the company may refuse to be bound by the policy. But when the assured makes a full and complete disclosure of the title and situation of the property to the agent of the company, and the agent deliberately writes false answers to be signed by the assui’ed, the company will be estopped from denying its liability, as was held in The Atlantic Ins. Co. v. Wright, supra.
It is next urged that the court erred in refusing defendant’s instruction No. 4. The substance of this instruction was given to the jury in instruction No. 1, or at least all that was necessary on the question of title to the property, and we do not think it was error to refuse it.
It is also contended that the court erred in refusing defendant’s 6th instruction, which was as follows:
“ If the jury believe, from the evidence, that at the time of the making of the application, or at the time of the issuance of the policy sued on, either the plaintiff or her agent, Thomas D. McKee, apprehended any incendiary danger to the insured property, then you will find for the defendant.”
We find no sufficient evidence in the record upon which this instruction could be predicated. If, therefore, it contained a correct proposition, and there was no testimony that McKee or his wife, when the policy issued, apprehended incendiary danger, the court did not err in refusing the instruction. What is said in regard to the decision of the court on this instruction, applies to the decision of the court in refusing defendant’s instruction No. 2.
So far as is shown by the record, the merits of the case have been fairly tried and we perceive no substantial error. The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
