{ "id": 2566786, "name": "John S. Thomas et al. v. United Firemen's Ins. Co. of Philadelphia", "name_abbreviation": "Thomas v. United Firemen's Ins. Co. of Philadelphia", "decision_date": "1903-06-13", "docket_number": "", "first_page": "278", "last_page": "281", "citations": [ { "type": "official", "cite": "108 Ill. App. 278" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "183 U. S. 308", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8297387 ], "opinion_index": -1, "case_paths": [ "/us/183/0308-01" ] }, { "cite": "92 Fed. 127", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 6751653 ], "opinion_index": -1, "case_paths": [ "/f/92/0127-01" ] }, { "cite": "82 Fed. 406", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 6734058 ], "opinion_index": -1, "case_paths": [ "/f/82/0406-01" ] }, { "cite": "35 Ill. 151", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "36 Minn. 1", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 563594 ], "opinion_index": 0, "case_paths": [ "/minn/36/0001-01" ] }, { "cite": "111 Mass. 93", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 2113032 ], "opinion_index": 0, "case_paths": [ "/mass/111/0093-01" ] }, { "cite": "114 Mass. 175", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 722325 ], "opinion_index": 0, "case_paths": [ "/mass/114/0175-01" ] }, { "cite": "102 Ill. 655", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2813189 ], "opinion_index": 0, "case_paths": [ "/ill/102/0655-01" ] } ], "analysis": { "cardinality": 384, "char_count": 6847, "ocr_confidence": 0.542, "pagerank": { "raw": 1.101814490139188e-07, "percentile": 0.5685435714591854 }, "sha256": "81b46279fdceb706e9a655fac798738f3332dc042839eca46dc9453adcd7c95a", "simhash": "1:5274269f1439ee40", "word_count": 1172 }, "last_updated": "2023-07-14T20:13:54.213761+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "John S. Thomas et al. v. United Firemen\u2019s Ins. Co. of Philadelphia." ], "opinions": [ { "text": "Mr. Presiding Justice Waterman\ndelivered the opinion of the court.\nThe allegations of the bill, after stating the making of three policies of insurance each containing the clause \u201c other insurance permitted,\u201d as to another policy, are \u201c that by a mistake and oversight of the scrivener, not discovered by any of the parties,\u201d the policy of insurance issued by the defendant \u201c omitted that clause;\u201d 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.\u201d\nA demurrer admits all facts well pleaded, but does not admit arguments or legal conclusions contained in the bill. Johnson v. Roberts, 102 Ill. 655.\nProm 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.\nThe bill sets forth the following as a part of the policy:\n\u201cNo 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.\u201d\nThe validity of this clause is not disputed.\nWe 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.\nThe 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.\nThe decree of the Circuit Court dismissing the bill is affirmed.", "type": "majority", "author": "Mr. Presiding Justice Waterman" } ], "attorneys": [ "Bulkley, Gray & More and William M. Jones, attorneys for plaintiffs in error.", "Cunningham, Vogel & Cunningham, attorneys for defendant in error." ], "corrections": "", "head_matter": "John S. Thomas et al. v. United Firemen\u2019s Ins. Co. of Philadelphia.\n1. Chancery Pleading\u2014Demurrer Admits All Facts Well Pleaded.\u2014A demurrer admits all facts well pleaded, but does not admit arguments or legal conclusions contained in the bill.\n2. Insurance\u2014Result of Electing to 'Bring Suit at Law upon a Policy.\u2014By electing to bring an action at law upon a policy in its original , form and prosecuting that action to final judgment thereon, a plaintiff conclusively elects to regard, the policy as the true contract with the insurance company, and thereby abandons any right he has to have it reformed in equity.\nBill to Reform a Policy of Insurance.\u2014Error to the Circuit Court of Cook County; the Hon. Frank Baker, Judge presiding. Heard in the Branch Appellate Court at the October term, 1902.\nAffirmed.\nOpinion filed June 13, 1903.\nThis is a suit by plaintiffs in error, who were complainants below, against the defendant below, to reverse a decree of the Circuit Court of Cook County dismissing the complainants\u2019 bill for want of equity.\nThe bill was filed to reform a policy of insurance and for a decree against the defendant to pay over to the complainant Nathan B. Kaplan. a,s receiver, the amount of an insured loss suffered by complainant Thomas.\nPlaintiffs in error contend that by the demurrer the defendant admits:\nFirst. That it made a contract of insurance with the complainant Thomas.\nSecond. That the policy it actually issued and delivered to the complainant Thomas, was not in fact the contract made, but that by an error or mistake an important clause, namely, \u201c other insurance permitted,\u201d was left out.\nThird. That by reason of a loss occurring, a liability accrued upon the defendant to pay the complainant Thomas, or his representative, the amount of the policy, namely, $2,500.\nFourth. That such liability has never been paid or satisfied.\nFifth. That the complainant sought to enforce 'payment by bringing a suit at law in the United States Circuit Court for the Northern District of Illinois.\nSixth. That the issue tried in that suit was whether or not the defendant was estopped from setting up the clause of the policy against other insurance by reason of having notice and knowledge of other insurance upon the property insured at the time the policy was issued.\nSeventh. That plaintiff recovered judgment on that issue, from which the defendant appealed to the Court of Appeals, where, on the first hearing, an opinion was rendered by that court, holding that no remedy at law existed because plaintiff could not avoid the express stipulation of the policy in that action. (United Firemen\u2019s Ins. Co. v. Thomas, 82 Fed. 406.)\nEighth. That a rehearing was granted by that court and a new opinion rendered leaving the issue raised by the pleading to be determined by proof. United Firemen\u2019s Ins. Co. v. Thomas, 92 Fed. 127.\nNinth. That on a re-trial in the Circuit Court judgment was directed for the defendant on the ground that oral testimony could not be introduced to change or modify the specific stipulations of the policy.\nTenth. That after an appeal w\u00a7ls taken by plaintiff upon that judgment to the Court of Appeals, the Supreme Court of the United States, in Northern Assurance Co. v. Grand View Bldg. Ass\u2019n, 183 U. S. 308, held the same as the Court of Appeals in its first opinion, namely, that no action at law could be maintained on the policy in question.\nEleventh. That it was owing to the Court of Appeals taking back its first opinion, granting a rehearing and rendering another opinion, that resulted in the judgment of the Circuit Court. Had the Court of Appeals stood by its first decision there would have been no second trial and no judgment against the complainant Thomas.\nBulkley, Gray & More and William M. Jones, attorneys for plaintiffs in error.\nCunningham, Vogel & Cunningham, attorneys for defendant in error." }, "file_name": "0278-01", "first_page_order": 300, "last_page_order": 303 }