Concordia Fire Ins. v. Heffron

84 Ill. App. 610, 1899 Ill. App. LEXIS 163

• Court: Appellate Court of Illinois
• Decided: October 19, 1899
• Status: Published

Opinion

Mr. Presiding Justice Sears

delivered the opinion of the court.

That an action will lie upon an oral contract of insurance seems to be settled. Hartford Fire Ins. Co. v. Wilcox, 57 Ill. 180; Hartford Fire Ins. Co. v. Farrish, 73 Ill. 166; Firemen’s Ins. Co. v. Kuessner, 164 Ill. 275.

And it has been held that such an oral contract will sustain an action although no express agreement was made as to the amount of premium to be paid or the duration of the policy, if the intention of the parties to the contract in these particulars can be gathered from the circumstances of the case. 1 Joyce on Insurance, Secs. 46, 47, 48, 49 and 50; Audubon v. Excelsior Ins. Co., 27 N. Y 216; Winne v. Niagara F. Ins. Co., 91 N Y. 185; Boice v Thames Ins. Co., 38 Hun, 246; Walker v. Met. Ins. Co., 56 Me. 371; Home Ins. Co. v. Adler, 71 Ala. 516; Scammell v. China M. Ins. Co., 164 Mass. 341.

But it is contended by counsel for appellant that no recovery could be had under the common counts upon the evidence here presented, and that a special count was necessary. We are of opinion that the contention is sound, and that the recovery here should not have been permitted under the common counts. 4 Joyce on Ins., Sec. 3665, et seq.; Towers v. Barrett, 1 T. R. 133; Russell v. Gilmore, 54 Ill. 147; Rockford Ins. Co. v. Nelson, 65 Ill. 415; Mut. Accident Ass’n v. Tuggle, 138 Ill. 428; Sup. Lodge, etc., v. Meister, 78 Ill. App. 649.

The evidence is not satisfactory as to the circumstances of this alleged contract. It is shown that Funkhauser, the agent of appellant, made a memorandum of the transaction, but there is no evidence as to what the memorandum was, in form or substance. Funkhauser was not called as a witness. If the suit is based upon a.contract, as evidenced by such memorandum, the pleadings required might be different from such as would be necessary upon a mere oral undertaking of insurance. 1 Phillips on Ins., 15; Ins. Co. v. Mordecai, 22 How. Ill; De Grove v. Met. Ins. Co., 61 N. Y. 594; Barre v. The C. B. Ins. Co., 76 Ia. 609; Salisbury v. Hekla F. Ins. Co., 32 Minn. 458.

The rule announced by these authorities is that “ a memorandum that a subject ‘is insured,’ or ‘shall stand insured,’ means that it is insured, or shall be so, according to the ordinary form of policy used in the office when the memorandum is made.”

In Firemen’s Ins. Co. v. Kuessner, sufra, the recovery was had under a special count upon the oral contract, and in Commercial Ins. Co. v. Hallock, 3 Dutch. (N. J.) 645, cited in Firemen’s Ins. Co. v. Kuessner, the recovery was under a special count setting up terms of a policy, though none was delivered to the insured.

Appropriate objection was made by counsel for appellant to the admission of the evidence under the declaration as framed, and exception was preserved to the ruling of the trial court in this behalf. The objection was renewed at the close of the trial, and was presented in the form of a proposition of law, which the court marked “ refused.”

Because of the insufficiency of the declaration to warrant the admission of evidence of the contract relied upon, the judgment is reversed and the cause is remanded.