Black v. Womer

Mr. Justice Scott delivered the opinion of the Court:

This case comes to this court on the appeal of defendant from the Appellate Court for the Third District, the judges of that court having certified the cause involves questions of law of such importance, both on account of principal and collateral interests, as that it should be passed' upon by the Supreme Court. It is an action of debt, and was originally brought against George N. Black, Erastus N. Bates, Henry H. Glidden and Rufus S. Lord. Service of process was had on all the defendants, and to 'the declaration filed against them, all of the defendants, except Glidden, filed a demurrer, which was, by the court, sustained. Leave was given to plaintiff to amend her declaration, which was done by filing an amended declaration against George N. Black, alone. That was equivalent to a dismissal of the suit as to all other defendants, which, under the provisions of our Practice act, is allowable. Defendant Black pleaded to the amended declaration, and thereafter the suit progressed against him alone, and the case was treated as at an end as to all other defendants after the sustaining of the demurrer to the declaration.

Elaborate arguments have been made as to the legal liability of defendant under the general law applicable to insurance companies, notwithstanding the provisions of the special charter of the company, in which defendant was a shareholder. Every question made in this case was made in, and fully discussed in, Hendryx v. Spruance, and Gulliver v. Roelle, ante, p. 141,—pases decided by this court since this cause was submitted in the Appellate Court, and determined adversely to the positions assumed by counsel for defendant. It would answer no useful purpose to renew that discussion, and reference may be made to the cases cited for an expression of the views of this court on the questions raised in the case at bar.

The ease of Chesnut v. Pennell, 92 Ill. 55 , is most confidently cited as conclusive as to the insufficiency of the proof as to the damages alleged to have been sustained. In this case, as in the one cited, plaintiff’s right to recover is based upon a loss by fire, against which she was insured by a policy in the Lamar Insurance Company, in which defendant was a corporator and stockholder. The decision in that case was placed on the ground there was no proof of the execution of such a policy, and no proof of loss by fire. All the evidence introduced in that case touching these essential facts was a decree of the Superior Court of Cook county, in which it was recited the company issued to plaintiff its policy in a stated sum, good for a definite period, and that the buildings insured were within that period destroyed by fire; but to that decree defendant was not a party, either actually or constructively, and so it was held he was not bound by the recitals contained in it. • But the evidence found to be wanting in that case is supplied in the present case by the stipulation of the parties. Here, it is admitted plaintiff recovered a judgment, in the sum of $1500, against the insurance company, on the alleged liability of the company upon a policy of insurance of the date and number in the declaration mentioned, issued by the company to plaintiff, as owner of the articles of property described in the declaration, for a valuable consideration, against loss by fire, and afterwards, while plaintiff was still the owner, the same property was destroyed by fire. No more definite and certain proof of the execution of the policy or the loss by fire could reasonably be made; certainly nothing more would be required to satisfy the mind of the existence of those facts. The admission of the loss by fire of the articles of property insured, renders proof that notice of that fact was given to the company wholly unnecessary. It would be useless to prove the company had notice of a fact it never denied, but admitted on the record it was true.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.