Atlantic Insurance v. Wright

Walker, J. The first assignment of error, questions the judgment of the court below, because appellant’s fifth plea was unanswered. In that plea it is averred, that appellee had no insurable interest in the property, which fact was fraudulently concealed from them when the policy was granted. Whether it was error to proceed to trial without a replication to this plea, depends upon the character of the other issues in the case. There was in the first count of the declaration, an averment that appellee was the absolute owner of the property insured, and in the second count, an averment that the company “ made insurance upon the five story, stone front, brick building of plaintiff.” When appellee filed the general issue, every material averment in the declaration was, by it, put in issue. And to recover, it was necessary that each should be proved.' And when proved, the appellant had a right to rebut the evidence, and defeat a recovery. Although the policy might prima facie prove these averments, the proof was subject to be rebutted by other competent evidence. It will be observed, that the same issue was presented by the declaration and plea of non-assumpsit, that would have been formed by traversing the averments of this plea. No right was lost to the appellant by proceeding to trial without its being answered, and none could have been, gained by forming an issue, which already existed in the record. When the issue was formed by the general issue to the declara^ tion, the same evidence was admissible under it that could have been given under an issue on the plea. It may be true, that the verdict in this case is not in all respects strictly formal, but under our statute of Amendments and Jeofails, if it is substantially good, it will suffice. It finds the issue for the plaintiff and assesses his damages. Such has been repeatedly held to be substantially a good verdict, under the statute, and it was not error to render a judgment upon it. It was urged as a ground for reversing this judgment, that the preliminary proofs do not disclose the names of the owners, and their interest in the property destroyed, as required by the printed specifications annexed to the policy. The evidence shows that when they were presented by appellee’s agent, he inquired of the agent of the company if they were sufficient, to which he replied, they were satisfactory and correct. And that the president of the company also stated that, " the company had no fault to find with the proofs, but he was not satisfied with the question about the trust deed.” If there existed any informality in the preliminary proofs of loss, it was expressly waived by these admissions of the president, and general agent. This court, in the case of The Peoria Fire and Marine Insurance Company v. Lewis et al., 18 Ill. R. 553, say that, “ Wheti. notice is given and accounts and proofs are furnished of a loss — and the company make objection to making payment—all grounds of objection that might be taken, and are not, are considered as waived, and the company can afterwards insist, only upon the objections then taken. The authorities are abundant and conclusive to this point.” In the case under consideration, there was an express, and not an implied waiver of objections to the proof, as there was in that case. That decision goes further than it is necessary to go in this, and it is conclusive as to all exceptions, which might have been urged against the sufficiency of the preliminary proofs of loss. This then leaves for consideration, the question, of whether the failure of appellee’s agent to give a written description of his interest in the property insured, avoids this policy. The requirement of the third condition, annexed to the policy, is this: “ If the interest in the property to be insured be a leasehold interest, or other interest not absolute, it must be so represented to the company, and expressed in the policy, in writing, otherwise the insurance shall be void.” The. policy describes the property insured as appellee’s “ five story brick (stone front) building, occupied on the first floor as a retail dry goods store, and in the second story as a wholesale millinery store,” etc. From the evidence contained in the bill of exceptions, it appears that the president of the company stated, that although Mr. Van Burén was not their general agent, he had aqted as their agent in this matter, and as the premium had been paid to him, although he had not paid it to the company, they would not object to paying the loss on that ground. From this admission it appears that the company regarded Van Burén as their agent in effecting this insurance. And although he n was not a general agent, there was no limitation of his powers, for all purposes, in effecting this insurance, as appears by the admission made by the president of the company. The admission did not limit his agency to the receipt of the pre-mium, and delivery of the policy, to the insured. It is sufficiently comprehensive to embrace all the powers of a general agent, in procuring the insurance of this property, and this is the import of the admission. If they regarded themselves bound by his receipt of the premium, because he was their agent, no reason is perceived why they should not be equally bound, by all of his acts, which a general agent might do, in effecting this insurance ; such as making the survey, application, and representation of the ownership of the property, and the interest which the applicant had in it. That those acts may be performed by a general agent of the company cannot be questioned. And when he upon his own examination, and from his information, makes such survey, and description, there can be as little doubt, that the company are bound by it, whether correct or incorrect. This condition only has application to representations made by the assured, and not to cases where the company rely upon their own knowledge of facts, and dispense with information from the assured. When the application is prepared, signed and presented by the owner, the company have the right to rely upon its correctness, and if incorrect in any material part, it avoids the policy. But when the assured fully discloses to the company or its agent the necessary facts, or they are otherwise cognizant of them, and they dispense with any act on his part, they are estopped from denying the description they have adopted, in the policy. If from all the facts of the case, they erroneously determine that the insured has one kind of interest in the premises, when he has another, they cannot be- heard, to say, that they were mistaken, and by that means escape the liability they have incurred. The evidence in this case shows, that the agent of appellee, when he procured the policy in the Providence Washington Company, fully informed Van Burén of the title and ownership of this property. And when he proposed to have that risk transferred to this company, appellee’s agent consented, and he inquired, if it was necessary for him to do anything to effect it, and was informed by Van Burén that it was unnecessary, as he was familiar with the facts, and would have the risk transferred. He made out the diagram and application and forwarded them to the company, and upon his application the policy was issued, and forwarded to him, and was by him delivered to appellee’s agent. He determined from all the facts, that appellee was the owner of the house, and was not a lessee, but held an absolute interest in it. It is described in the policy as such, and not as a leasehold, or less interest. That he so regarded it, is manifest from the fact, that when he was informed of all the facts, at the time he granted the policy for the Providence Washington Company, he gave it in the name of appellee, and not of the trustees. When the agent of the company, undertook to make the survey, the application, and representation of the interest, which the assured had in the property, and dispensed with any acts of the assured, and acted upon his own knowledge of the facts, the company ratified his acts by granting the policy. They are bound by his acts as their agent, and if he was mistaken in his representations to them of the ownership, they have no right to insist upon it as a defense to a recovery. We perceive no error in this record for which the judgment of the court below should be reversed. It must therefore be affirmed. Judgment affirmed.