{
  "id": 5226881,
  "name": "\u00c6tna Insurance Company v. Edward Stevens",
  "name_abbreviation": "\u00c6tna Insurance v. Stevens",
  "decision_date": "1868-09",
  "docket_number": "",
  "first_page": "31",
  "last_page": "35",
  "citations": [
    {
      "type": "official",
      "cite": "48 Ill. 31"
    }
  ],
  "court": {
    "name_abbreviation": "Ill.",
    "id": 8772,
    "name": "Illinois Supreme Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [],
  "analysis": {
    "cardinality": 435,
    "char_count": 8841,
    "ocr_confidence": 0.486,
    "pagerank": {
      "raw": 2.800331929317264e-07,
      "percentile": 0.836776970394799
    },
    "sha256": "5384d75d47bcf594fd178858a5d3cdf28560332c2c3ffc5375d1756c7e2c0383",
    "simhash": "1:c0632cca860714fa",
    "word_count": 1565
  },
  "last_updated": "2023-07-14T18:54:01.886689+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "\u00c6tna Insurance Company v. Edward Stevens."
    ],
    "opinions": [
      {
        "text": "Mr. Chibe Justice Beeese\ndelivered the opinion of the Court:\nThis was an action of assumpsit in the Superior Court of Chicago, to recover for a total loss on a fire insurance policy, brought by Edward Stevens against the .\u00bfEtna Insurance Company, resulting in a verdict and judgment for the plaintiff. .\nIt was attempted, on the trial, to induce the belief on the part of the jury, that the burning was the deliberate act of the plaintiff himself. This they failed to find. It was a question peculiarly within their province, and they have given no credit to the charge. We cannot say, in this they erred.\nThe policy provided, \u201c if a difference of opinion should arise between the parties hereto, as to the amount of loss or damage, the subject shall be referred to two disinterested and competent men, each party to select one, (and in case of disagreement they to select a third,) who shall ascertain, estimate and appraise the loss or damage, and their award in writing shall be binding on the parties.\u201d\nIt seems, soon after the fire, when just extinguished, Hovey, the agent of the company, was on the premises with others, and asked one Foltz, a witness for the plaintiff, if he could not get some men to make some appraisals, one for each party. He saw Gapt. Rounds and called him in, and an ex-policeman named Powers, a drinking man, \u201c and of no account,\u201d had been arrested for vagrancy and had been punished for disorderly conduct. These men, Rounds and Powers, went to work to look the things over, and Hovey put down the amounts on paper. Stevens told Rounds, if he had known what they were doing, he would have got a man who understood the business, and objected to his going on. Rounds replied, he did not want to do anything further, but Hovey, the agent, told him to go on, and he went to work again.\nThe result thus arrived at, is claimed by appellants as an award within the clause of the policy above quoted.\nWe do not think so. There was no selection of arbitrators by the parties, nor were they all \u201c disinterested,\u201d Hovey being the acting agent of the company, and Powers can hardly be said to be \u201c competent,\u201d in the meaning of that term.\nHor was the award signed by the men who thus acted. Powers did not sign it, and Hovey\u2019s signature, being an interested party, robbed it of all validity.\nAppellants insist, if there was not a technical award, there was an accord, and the tender of the amount afterwards, was satisfaction.\nThere is no proof that Stevens agreed to these proceedings. Accord is a satisfaction agreed upon between the party injuring and the party injured, which, when performed, is a bar to all actions upon this account. 3 El. Com. 15; 1 Bac. abr. title \u201cAccord;\u201d 2 Green leaf\u2019s Ev. 28.\nThe proof of the value of the goods destroyed, and of the value of the stock on hand, at the time of the fire, was made by several witnesses, including the testimony of the plaintiff himself, from which the jury were justified in finding the ver- . diet they did find.\nObjections were made by the appellants to some questions put to some of the witnesses by appellee. .They were, perhaps, not strictly admissible, because immaterial, and they could not have prejudiced the defendant. Such are the questions put to Gaines, Winne, and Stevens himself, to which objection was made, as to the worth of the stock, and what value in groceries the store would contain.\nIt appears, some articles claimed to have been lost, were omitted in the preliminary proofs and notice of the loss, which the court allowed the plaintiff to supply, against the objection of the defendants.\nIf the omission from the preliminary proofs of the articles destroyed was inadvertent, we think, if the claim is not paid, and the assured is obliged to sue, he is not prevented from claiming\u2019 in his action for additional articles he can prove were destroyed by the fire.\nIf he can satisfy a jury the omission was from no design or bad purpose, and was an inadvertence, justice demands, if his claim as first presented is not promptly paid, he should be allowed to recover for all he can prove he has lost.\nAppellants complain that some of their instructions were refused\u2014the first, second, eighth, ninth, tenth, eleventh, thirteenth and fourteenth. We are of opinion the court properly disposed of these instructions.\nAs to the first instruction, there was no evidence on which to base it. The second was supplied by an instruction from the court, which was all the defendants could ask. The court told the jury the company were not liable, under the terms of the policy, to pay the loss until the end of sixty days from the time due proof was made of the amount of the loss, and if no such proofs were furnished, then the plaintiff could not recover.\nThe eighth instruction, is an attempt to get the court to pass upon the weight of the testimony, and should not have been given, and the same may be alleged of the ninth.\nIt was not a question before the j ury as to the capacity in which Ewing and Muller acted. They did not claim to be appraisers under the policy, nor was their evidence offered as the evidence of such persons. The tenth instruction was therefore properly refused.\nThe eleventh is in opposition to what we have herein said, that a party, before payment on the preliminary proofs, could recover for articles destroyed, which he had inadvertently omitted from such proofs, and consequently, was properly refused.\nThe thirteenth instruction, in the terms in which it appears, was calculated to mislead the jury, and was indefinite, and uncertain, and not law. It tells the jury, they are not at liberty to guess at any losses, and in estimating the loss in either class, if there is a want of proof of the loss claimed on any article, they were at liberty to reject the claim altogether.\u2014 Mow, whether this means the whole claim, or a particular claim, is uncertain, It should have been precise, and to the effect that they could reject the particular claim. If given as asked, and the plaintiff had proved all the claims except one, the jury would have had a right to reject the whole claim. This is not the law.\nThe fourteenth instruction is upon the finding of Bounds and ITovey, and which, as we have said there was no award under the policy, was not for the consideration of the jury; and besides, it was not the province of the jury to say what was an adjustment under the policy.\nPerceiving no error in the record, the judgment must be affirmed.\nJudgment affirmed.",
        "type": "majority",
        "author": "Mr. Chibe Justice Beeese"
      }
    ],
    "attorneys": [
      "Messrs. Sleeper & Whiton, for the appellants.",
      "Messrs. Tyler & Hibbard, for the appellee."
    ],
    "corrections": "",
    "head_matter": "\u00c6tna Insurance Company v. Edward Stevens.\n1. Arbitration and award\u2014what not considered as an award. A policy of insurance provided that, \u201c if a difference of opinion should arise between the parties hereto, as to the amount of loss or damage, the subject shall be referred to two disinterested and competent men, each party to select one, (and in case of disagreement they to select a third,) who shall ascertain, estimate and appraise, the loss or damage, and their award in writing shall be binding on the parties.\u201d A loss having occurred, H, an agent of the company, requested one F to select some one to make the appraisal for each party, whereupon R and P were selected, and thereupon H, R and P made an estimate in writing of such loss, which was signed by H and R only. These proceedings were without the sanction of S, the insured. Meld: in action by him to recover the loss, against the company, that this was not an award under the policy,\u2014the proof showing that such arbitrators were not selected by the parties; that they were not 11 disinterested,\u201d as H, one of them, was the agent of the company, and that P, another, was not \u201c competent,\u201d he being a drinking fellow \u201c of no account.\u201d That the pretended award was signed only by H and P, and that being signed by H, an interested party, robbed it of all validity.\n2. Accord and satisfaction\u2014what is not. Nor in such case would a tender afterwards of the amount estimated to be due to S, the insured, amount to an accord and satisfaction, there being no proof that S agreed to such proceedings.\n3. Same\u2014definition of. Accord is a satisfaction agreed upon between the party injuring and the party injured, which, when performed, is a bar to all actions upon this account.\n4. Insurance\u2014in preliminary proofs\u2014articles destroyed omitted from\u2014may be recovered for in suit upon the policy\u2014when such omission was inadvertent. When a party in making his preliminary proofs of loss, inadvertently omitted mention of certain articles which were destroyed, he may, if the claim is not paid, and suit is brought, recover in such action for the articles destroyed, but omitted in such proofs.\nAppeal from the Superior Court of Chicago; the Hon. Joseph E. Gary, Chief Justice, presiding.\nThe opinion states the case.\nMessrs. Sleeper & Whiton, for the appellants.\nMessrs. Tyler & Hibbard, for the appellee."
  },
  "file_name": "0031-01",
  "first_page_order": 33,
  "last_page_order": 37
}