{ "id": 5258727, "name": "Concordia Fire Ins. Co. v. P. H. Heffron", "name_abbreviation": "Concordia Fire Ins. v. Heffron", "decision_date": "1899-10-19", "docket_number": "", "first_page": "610", "last_page": "613", "citations": [ { "type": "official", "cite": "84 Ill. App. 610" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "32 Minn. 458", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 756713 ], "opinion_index": 0, "case_paths": [ "/minn/32/0458-01" ] }, { "cite": "76 Ia. 609", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2063577 ], "opinion_index": 0, "case_paths": [ "/iowa/76/0609-01" ] }, { "cite": "61 N. Y. 594", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 525472 ], "opinion_index": 0, "case_paths": [ "/ny/61/0594-01" ] }, { "cite": "78 Ill. App. 649", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5788886 ], "opinion_index": 0, "case_paths": [ "/ill-app/78/0649-01" ] }, { "cite": "138 Ill. 428", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5445147 ], "opinion_index": 0, "case_paths": [ "/ill/138/0428-01" ] }, { "cite": "65 Ill. 415", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2617641 ], "opinion_index": 0, "case_paths": [ "/ill/65/0415-01" ] }, { "cite": "54 Ill. 147", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5275391 ], "opinion_index": 0, "case_paths": [ "/ill/54/0147-01" ] }, { "cite": "164 Mass. 341", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 789073 ], "opinion_index": 0, "case_paths": [ "/mass/164/0341-01" ] }, { "cite": "71 Ala. 516", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 11255709 ], "opinion_index": 0, "case_paths": [ "/ala/71/0516-01" ] }, { "cite": "56 Me. 371", "category": "reporters:state", "reporter": "Me.", "case_ids": [ 667041 ], "opinion_index": 0, "case_paths": [ "/me/56/0371-01" ] }, { "cite": "38 Hun, 246", "category": "reporters:state", "reporter": "Hun,", "opinion_index": 0 }, { "cite": "91 N Y. 185", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2188473 ], "opinion_index": 0, "case_paths": [ "/ny/91/0185-01" ] }, { "cite": "27 N. Y 216", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2035362 ], "opinion_index": 0, "case_paths": [ "/ny/27/0216-01" ] }, { "cite": "164 Ill. 275", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5503407 ], "opinion_index": 0, "case_paths": [ "/ill/164/0275-01" ] }, { "cite": "73 Ill. 166", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5319289 ], "opinion_index": 0, "case_paths": [ "/ill/73/0166-01" ] }, { "cite": "57 Ill. 180", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5241414 ], "opinion_index": 0, "case_paths": [ "/ill/57/0180-01" ] } ], "analysis": { "cardinality": 420, "char_count": 6392, "ocr_confidence": 0.539, "pagerank": { "raw": 3.2028429035133413e-07, "percentile": 0.8659819549325076 }, "sha256": "63bd791d9ede25abf8a26547e5669c5e25d29640b969150c2eb0122e7880b6ed", "simhash": "1:caed7349ca838ce8", "word_count": 1115 }, "last_updated": "2023-07-14T19:05:11.837712+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Concordia Fire Ins. Co. v. P. H. Heffron." ], "opinions": [ { "text": "Mr. Presiding Justice Sears\ndelivered the opinion of the court.\nThat 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\u2019s Ins. Co. v. Kuessner, 164 Ill. 275.\nAnd 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.\nBut 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\u2019n v. Tuggle, 138 Ill. 428; Sup. Lodge, etc., v. Meister, 78 Ill. App. 649.\nThe 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.\nThe rule announced by these authorities is that \u201c a memorandum that a subject \u2018is insured,\u2019 or \u2018shall stand insured,\u2019 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.\u201d\nIn Firemen\u2019s 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\u2019s Ins. Co. v. Kuessner, the recovery was under a special count setting up terms of a policy, though none was delivered to the insured.\nAppropriate 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 \u201c refused.\u201d\nBecause 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.", "type": "majority", "author": "Mr. Presiding Justice Sears" } ], "attorneys": [ "Bates & Harding, attorneys for appellant.", "Graham H. Harris, attorney for appellee." ], "corrections": "", "head_matter": "Concordia Fire Ins. Co. v. P. H. Heffron.\n1. Insurance\u2014Oral Contracts.\u2014An action will lie upon an oral contract of insurance.\n2. Same\u2014An Oral Contract Will Sustain an Action.\u2014An oral contract of insurance will sustain an action, although no express agreement is 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.\n3. Practice\u2014Recovery Under the Common Counts.\u2014A recovery upon an oral contract of insurance can not be had under the common counts; a special count is necessary.\n4. Construction of Contracts\u2014Meaning of \u201c Memorandum.\u201d\u2014A memorandum that a subject \u201cis insured\u201d or \u201cshall stand insured,\u201d 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.\nAssumpsit, on an oral contract of insurance. Trial in the Circuit Court of Cook County; the Hon. Richard S. Tutiiill, Judge, presiding. Finding and judgment for plaintiff; appeal by defendant. Heard In this court at the March term,. 1899.\nReversed and remanded.\nOpinion filed October 19, 1899.\nStatement.\u2014This suit is brought upon an alleged oral contract to insure against loss by tire. Appellee, through one Jennings, an insurance agent, applied to Funkhauser, who represented the appellant company, to place insurance to the amount of $4,ODD'upon whisky owned by appellee and located in Glenrnore warehouse at Owensboro, Kentucky. Funkhauser replied, \u201cAll right,\u201d and turning to a map, inquired of Jennings as to which of the Glenrnore warehouses contained the whisky to be insured. Jennings answered that he did not know, and Funkhauser then requested him to ascertain and inform him, stating that he would hold the goods \u201c covered \u201d in \u2018 the Concordia.\u201d Jennings testified that Funkhauser then made a memorandum of some kind. Before anything further was done between \u25a0 the parties a fire occurred and the goods were destroyed.\nThere was evidence tending to show that the Glenmore warehouses consisted of but one building, under one roof, divided by partitions into compartments, which were known as Warehouse A, Warehouse B and Warehouse 0. There was other.evidence tending to show that the several warehouses in question were detached and separate buildings.\nJennings testified that he had been in the insurance business twenty-five years, and testified further, as follows:\n\u201c Q. Do you know whether there is any general custom among insurance people as to the time insurance policy is to run ? A. I do.\nQ. Now you may state what that general custom is % A. It was assumed that the policy is to issue for a year.\u201d\nThere was evidence tending to show a waiver of proofs of loss; the refusal of the appellant to pay the loss was made upon the ground that there had been no contract of insurance effected.\nThe declaration consisted of the common counts only.\nA jury was waived and the cause was submitted to the court. The court found the issues for the plaintiff, appellee, assessed his damages and entered judgment. From that judgment this appeal is prosecuted.\nBates & Harding, attorneys for appellant.\nGraham H. Harris, attorney for appellee." }, "file_name": "0610-01", "first_page_order": 618, "last_page_order": 621 }