Phœnix Insurance v. Perkey

Mr. Justice Craig delivered the opinion of the Court: This was an action brought by John D. Perkey against the Phoenix Insurance Company, on a policy of insurance issued on the 6th day of December, 1875, under which the plaintiff Avas insured in the sum of $1800 against loss by fire,—$600 on a one story frame building occupied by the assured as a saddlery, $1100 on stock of saddles and harness, and $100 on harness makers’ tools. The insurance company interposed no plea to the declaration. A default was taken, the evidence heard, and the damages assessed at $1822.50, the amount of the policy, and interest from the time of the loss. Under our practice the default admitted every material allegation of the declaration, and left nothing but the assessment of the damages to be determined,—as held in Cook v. Shelton, 20 Ill. 107, and subsequent cases. The only question that can arise upon this appeal, therefore, is whether the declaration is sufficient to support the judgment, and whether there was error in the assessment of the damages. It is contended by appellant that the declaration is fatally defective for the reason that it fails to aver the separate value of each class of property which was destroyed. The policy was set o.ut -in hcee verba in the declaration, and it contains this provision: “ By this policy of insurance the Phcenix Insurance Company, in consideration of $57, to them in hand paid by the assured hereinafter named, the receipt whereof is hereby acknowledged, do insure John D. Perkey, of Clay City, Illinois, against loss or damage by fire, to the amount of $1800, for the period of one year, as follows: $600 on his one story frame shingle roof building occupied by the assured as saddlery and harness store, $1100 on his stock of saddles and harness, and $100 on his harness makers' tools,—all contained therein,'' etc. ' The declaration, after setting out the policy, contains this averment: “ The plaintiff avers, that after the time of the making of said policy, and from thence until the happening of the loss and damage hereinafter mentioned, he had an interest in the said property to the amount of the said sum so by the defendant insured therein as aforesaid; and the plaintiff further avers, that on the 19th day of April, 1876, the said property was consumed and totally destroyed by fire.” While this averment is not as specific as it might be in regard to the value of each article of property at the time of the loss, yet we are of opinion it is, in substance, sufficient when considered in connection with the policy, which was set out in the declaration. There was $600 on the building, $1100 on stock, and $100 on tools, as appears from the policy. ISTow, it is averred that plaintiff had an interest in said property, at the time of the loss, to the amount of said sum insured thereon as aforesaid, and that said property was totally destroyed,— that is, the building in which his interest -was $600, and the stock in which his interest was $1100, and the tools in which his interest was $100. Doubtless the meaning of the pleader would have been plainer had he averred the separate value of the building, the stock and the tools at the time the property was destroyed; yet we do not regard the averments contained in the declaration as a substantial departure from those suggested. I.t is next contended, that, the declaration is insufficient because it does not aver that the loss occurred during the time the policy was in force. The declaration avers that the policy was issued December 6, 1875, for one year, and that the loss occurred on the 19th day of April, 1876. It is true it is not in these precise words averred that the policy was in force when the loss occurred, but facts are set out which show affirmatively that it was in force at that time, which is all that was required. The next objection to the declaration is, that the notice and proofs of loss as averred in the declaration did not disclose whether there was any other insurance on the property; nor did it appear that the notary who made the certificate of loss was disinterested. The declaration averred, in express terms, that there was no other insurance on the property, and this obviated the necessity of a statement in the proof of loss of what other insurance had been made on the property, and giving copies of the written portions of such policies. It is true the declaration does not aver that the notary before whom the proofs of loss were made was disinterested, but we do not regard that as a substantial defect in the declaration. It is averred in the declaration that proofs of loss were made out before a notary nearest the place of the fire, as required by the policy. If the notary was interested in the loss, or related to the assured, that was a matter to be established by the company as a defence to a recovery on the trial. In regard to the assessment of damages the record discloses no error. It was proven that the property described in the declaration was burned on the 19th day of April, 1876; that it was worth $2900, and all destroyed; that proof of loss was delivered to the agent of the company on the 7th day of June, 1876. This proof, in connection with the policy, which was read in evidence, was sufficient to authorize the judgment. The judgment will be affirmed. • Judgment affirmed.