Phœnix Insurance v. Stewart

Appellate Court of Illinois

Phœnix Insurance v. Stewart

53 Ill. App. 273, 1893 Ill. App. LEXIS 291

CourtAppellate Court of Illinois

DecidedDecember 12, 1893

StatusPublished

Cited by3 cases

This text of 53 Ill. App. 273 (Phœnix Insurance v. Stewart) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Phœnix Insurance v. Stewart, 53 Ill. App. 273, 1893 Ill. App. LEXIS 291 (Ill. Ct. App. 1893).

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Opinion

Mr. Presiding Justice Harker

delivered the opinion of the Court.

This is an action on a policy of insurance to recover for the loss of a hay press struck by lightning and destroyed.

Judgment was recovered in the Circuit Court for $150.

A reversal is sought because, first, the suit was not commenced within six months after the loss, the limit fixed by a provision in the policy; second, the hay press was not included in the articles insured, i, e., was not a farming utensil; third, the hay press was not at the time it was destroyed in a building, as required by the policy.

The limitation clause in the policy is, “ STo suit or action shall be maintainable against this company in law or equity, unless commenced within six months next after the fire, from which said loss shall occur, any statute of limitation to the contrary notwithstanding.” Suit was not commenced until seven months and twelve days after the loss. The delay, however, was occasioned by the letters of the general agent of the company, and hopes thereby held out to the appellee that the claim would be settled without suit. The first point is not well taken. Allemania Fire Insurance Company v. Pach et al., 133 Ill. 220.

The hay press was not named in the policy, but it is contended by the appellee that it was included as a farming utensil in the following clause of enumeration contained in the policy: “ $150 on reapers, mowers, harvesters and other farming utensils (excepting threshing machines), wagons, buggies and harness, in buildings on premises.” We are not inclined to hold, as insisted by appellant, that the term, “farming utensils” includes only such utensils as are generally used upon an ordinary farm. If the utensil is used in carrying on a particular kind of farm, as for instance, a hay farm, it would be a farming utensil. 'INor is it necessary to be in general use. The hay press is included within the term, “ farming utensils.”

At the time it was destroyed the hay press was not in a building, but in a hay stack yard, some thirty feet from a building. As we construe the clause quoted above, the policy did not cover farming utensils, unless within buildings on the premises. The closing phrase, “ in buildings on premises,” belongs to the entire series. If the comma before “ in buildings on premises,” were removed, the phrase would belong only to “ wagons, buggies and harness,” and there would be some reason in appellee’s contention as to construction. The construction we place upon the clause is in harmony with the understanding of the parties at the time the policy was delivered. Michael Higgins, the local agent, who took the risk, explained to appellee that the hay press, to be protected by the insurance, must be in a barn, shed or building, on his own premises. For appellee’s failure to comply with this requirement of" the policy, the judgment must be reversed.

And inasmuch as the evidence shows that he has no cause of action against appellant, the case will not be remanded.

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Mr. Presiding Justice Harker

delivered the opinion of the Court.

This is an action on a policy of insurance to recover for the loss of a hay press struck by lightning and destroyed.

Judgment was recovered in the Circuit Court for $150.

A reversal is sought because, first, the suit was not commenced within six months after the loss, the limit fixed by a provision in the policy; second, the hay press was not included in the articles insured, i, e., was not a farming utensil; third, the hay press was not at the time it was destroyed in a building, as required by the policy.

The limitation clause in the policy is, “ STo suit or action shall be maintainable against this company in law or equity, unless commenced within six months next after the fire, from which said loss shall occur, any statute of limitation to the contrary notwithstanding.” Suit was not commenced until seven months and twelve days after the loss. The delay, however, was occasioned by the letters of the general agent of the company, and hopes thereby held out to the appellee that the claim would be settled without suit. The first point is not well taken. Allemania Fire Insurance Company v. Pach et al., 133 Ill. 220.

The hay press was not named in the policy, but it is contended by the appellee that it was included as a farming utensil in the following clause of enumeration contained in the policy: “ $150 on reapers, mowers, harvesters and other farming utensils (excepting threshing machines), wagons, buggies and harness, in buildings on premises.” We are not inclined to hold, as insisted by appellant, that the term, “farming utensils” includes only such utensils as are generally used upon an ordinary farm. If the utensil is used in carrying on a particular kind of farm, as for instance, a hay farm, it would be a farming utensil. 'INor is it necessary to be in general use. The hay press is included within the term, “ farming utensils.”

At the time it was destroyed the hay press was not in a building, but in a hay stack yard, some thirty feet from a building. As we construe the clause quoted above, the policy did not cover farming utensils, unless within buildings on the premises. The closing phrase, “ in buildings on premises,” belongs to the entire series. If the comma before “ in buildings on premises,” were removed, the phrase would belong only to “ wagons, buggies and harness,” and there would be some reason in appellee’s contention as to construction. The construction we place upon the clause is in harmony with the understanding of the parties at the time the policy was delivered. Michael Higgins, the local agent, who took the risk, explained to appellee that the hay press, to be protected by the insurance, must be in a barn, shed or building, on his own premises. For appellee’s failure to comply with this requirement of" the policy, the judgment must be reversed.

And inasmuch as the evidence shows that he has no cause of action against appellant, the case will not be remanded.

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53 Ill. App. 273, 1893 Ill. App. LEXIS 291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phnix-insurance-v-stewart-illappct-1893.

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