Thomas v. United Firemen's Ins. Co. of Philadelphia

Mr. Presiding Justice Waterman delivered the opinion of the court. The allegations of the bill, after stating the making of three policies of insurance each containing the clause “ other insurance permitted,” as to another policy, are “ that by a mistake and oversight of the scrivener, not discovered by any of the parties,” the policy of insurance issued by the defendant “ omitted that clause;” that it was the agreement and intention of this complainant and of the defendant and its agents issuing the same, that this policy should be the same as the policies issued by the" three other insurance companies and that it should contain the clause, other insurance permitted.” A demurrer admits all facts well pleaded, but does not admit arguments or legal conclusions contained in the bill. Johnson v. Roberts, 102 Ill. 655. Prom the bill it appears that with full knowledge of the facts the plaintiffs began suit in t"he United States Circuit Court upon the policy as written and delivered; that judgment for the plaintiffs in this action at law was rendered, from which the defendant took an appeal with the result that after two hearings in the United States Court of Appeals the judgment of the Circuit Court was reversed and the cause remanded; that thereafter another trial was had and a judgment rendered for the defendant. That from this the defendant took an appeal which it afterward dismissed, leaving the judgment for the defendant of the United States Circuit Court in full force; that thereafter, more than eight years after the alleged loss, this bill .to reform the policy was filed. The bill sets forth the following as a part of the policy: “No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity until after full compliance by the insured with all the lore-going requirements, nor unless commenced within twelve months next after the fire.” The validity of this clause is not disputed. We do not regard the fact that, prior to the expiration of one year from the fire, a receiver for the insured was appointed by the Superior Court, and within a year a suit at law begun in the United States Circuit Court, as excepting the present suit from the operation of the condition of the policy as to the commencement of suit. The plaintiffs, by electing to bring an action at law upon the policy in its original form and prosecuting that action to final judgment thereon, conclusively elected to regard the policy as the true contract with the insurance company, and thereby abandoned any right they might have had to have it reformed in equity. Washburn v. Great Western Ins. Co., 114 Mass. 175; Sanger v. Wood, 3 Johnson Ch. 417-421; Thwing v. Great Western Ins. Co., 111 Mass. 93-110; Carlyle v. Long, 5 Littell (Ky.), 167-170; Thomas v. Joslin, 36 Minn. 1; Am. & Eng. Ency. of Law, Vol. 15, p. 336; Wayman v. Cochrane, 35 Ill. 151. The decree of the Circuit Court dismissing the bill is affirmed.