93 Ill. 96 | Ill. | 1879
delivered the opinion of the Court:
This action was on a policy of insurance. The property covered by the policy was a quantity of hay. As respects the destruction of the property, and its value, no question is made. The policy declared on contains a condition that “ if the interest of the assured in the property be any other than the entire, unconditional and sole ownership, * * * it must be so represented to the company, and so expressed in the written part of this policy, otherwise the policy shall be void.” It is said the assured was not vested with the “ entire, unconditional and sole ownership” of the property embraced in the policy, and for that reason there can be no recovery. It is proved the officers of the company were fully informed as to the character of plaintiff's interest in the property, whatever it was, and with that knowledge the company chose to assume the risk.
The proofs of loss, introduced as evidence, contained a statement that the property insured belonged to plaintiff,—that is, it was purchased with money furnished by him under a contract with one Frisbie, by whom it was to be sold, and all profits over costs to be divided after the purchase money was returned.
■ Prior to issuing this policy there had been a policy issued by defendant upon the same property, in the name of Frisbie & Chipp, but plaintiff would not accept that policy, and this fact was well known to the insurance company at and before the issuing of this policy. It was for the reason, plaintiff insisted, Frisbie had no interest in the property until the purchase money was returned, and if no profit was realized he would have no interest at all.
When the broker applied for insurance for plaintiff the policy clerk of the company called his attention to the policy on the same property to Frisbie & Chipp. Afterwards the soliciting broker, either at the request of the clerk in charge of the office, or of his own motion, went again to see plaintiff concerning the risk. At that interview plaintiff disclosed the exact nature of his interest in the property, and the broker testifies he reported the same to the company’s clerk, and directed that the former policy should be canceled, which was. done, and the policy declared on issued.
The application for insurance was made by a solicitor, and .whether he is to be regarded as the agent of plaintiff or of the company is a matter of no consequence in the view we have taken of the case. In some respects the broker may have been, and doubtless was the agent of the company, and in others he may have been the agent of the assured. Be that as it may, the nature and.“extent of the ownership” of plaintiff in the property insured was sufficiently “ represented to the company,” and if it was not “ expressed in the written part of the policy” it was the neglect of the policy clerk who filled it up. The company having been informed as to the nature of the interest claimed by the assured in the property, and as he was not present, it was the duty of the clerk acting for the company to have expressed the nature of that ownership in the written portion of the policy. The omission to do so would be bad faith towards the assured, and the company should not be permitted on that account to escape liability on its contract of insurance. The case of Lycoming Ins. Co. v. Jackson, 83 Ill. 302, is conclusive of this view of the law.
The evidence is conflicting as to whether the soliciting broker that procured the insurance for plaintiff was in fact an agent of the company. Conceding he was its agent, as the jury were authorized to believe from the evidence, then the third instruction given for plaintiff, of which complaint is made, states the law correctly as applicable to the case, notwithstanding the condition of the policy that such a broker shall be regarded as the .agent of the assured. On this point in the ease we adhere to the reasoning in Commercial Ins. Co. v. Ives, 56 Ill. 402, to which reference is made for a fuller expression of our views.
The judgment must be affirmed.
Judgment affirmed.
