Allemania Insurance v. Little , 1886 Ill. App. LEXIS 160 ( 1886 )

McAllister, P. J.

We are of opinion that the court below erred in giving the instruction on the part of the plaintiffs respecting the defense under the limitation clause in the policy, and in refusing that asked on behalf of defendant as to that defense. By that given for plaintiffs the court told the jury that it was claimed by the defendant that the suit was not commenced within six months from the destruction of the property insured; that as to that, it was for the jury to say, from all the evidence, when the property was destroyed by fire, and if they should believe from the evidence that it was so destroyed within six months from the bringing of the suit, which was February 24, 1885, then the jury should find for the plaintiffs the amount of the policy.

The insurance was against loss or damage by fire or lightning. The condition prescribing the limitation was that no suit or action against the company for the recovery of any claim by virtue of the policy should be sustainable in any court, “ unless such suit or action shall be commenced within six months next after the fire has occurred.”

It is manifest from that language that the six months begin to run from the happening of the fire, and not from the destruction of the property insured. An action, if brought within six months next after the fire had occurred, would lie upon the policy to recover for property damaged, and which had, in no proper sense, been destroyed.

The defense set up under the limitation clause, was not that the suit had not been commenced within six months next after the destruction of the property, but that it had not been so brought within six months next after the fire occurred. So that plaintiffs’ said instruction misstated in their own favor what the defendant claimed as a defense, and what was the real point in issue. It was misleading, therefore, to a degree that must have been prejudicial to the defendant, as the case stood upon the evidence bearing upon the real issue.

If the fire occurred, within the fail meaning of that clause, on the 23d day of August, 1884, then the suit not having been brought until the 24th day of February, 1885, it was too late, and the defense under the limitation clause was made out.

The fire was the cause, the destruction of or damage to the property insured would be consequences. The fire may have occurred, within the meaning and intention of said clause, on the 23d day of August aforesaid, and the destruction of the property may not have been fully consummated until the 24th day of the same month. It will not do to say that the fire had not occurred, unless the ruins had ceased to burn and smoke, and the destruction of the property had become complete.

The plaintiffs, in their proof of loss, deliberately made in writing and A-erified by oath, stated that the fire occurred on the 23d day of August, 1884. While, in the first instance, the burden Avas on the defendant to establish its defense, under the plea setting up the limitation clause and non-compliance Avith it on the part of the plaintiffs, yet, Avhen the plaintiffs introduced their proofs of loss in evidence, stating that the fire occurred on the 23d day of August as aforesaid, then we think the burden of proof became shifted, and it was for the plaintiffs to show that the fire, which indisputably broke out in their steam saw mill about eight o’clock in the evening of said 2-3d day of August, had not, during the remainder of that day, progressed to such a degree as to cause the substantial destruction of any of the three items or parts of said mill property, covered by the three respective sums of the whole amount insured, into which that amount was divided and applied by the policy. FTo evidence at all was offered by them tending to show the progress which the fire had made at the closing hour of that day, except what may be inferred from said statement made by them in their proof of loss.

The instruction for plaintiffs under consideration withdrew from the jury every other question of fact, and directed them to find for the plaintiffs the amount in the policy, if they found from the evidence that the destruction of the property was within six months from the bringing of the suit. The general issue was pleaded and that part of the instruction was clearly improper. Hovey v. Thompson, 37 Ill. 538.

The instruction which the defendant asked, and the court refused to give as asked, was, that if the jury believed from the evidence that the property covered by the policy in question was destroyed by fire, and that such fire occurred on the 23d day of August, 1884, and that suit for the recovery of the loss sustained was not commenced until the 24th day of February, 1885, then the plaintiffs, under the condition of said policy, can not recover.

That instruction was pertinent to the actual issue, and embodied a correct rule of law in perfectly clear language. The defendant had an undoubted right to have it given as asked; but the court modified it by importing into it a reference to the question, when was the property destroyed? That was error. The State, etc., v. Wilson, 2 Scam. 225; Cohen v. Schick, 6 Bradwell, 286.

Cross-error is assigned by plaintiffs below, upon the ruling of the court sustaining the defendant’s demurrer to their second replication, which set up, as a waiver of the limitation clause, mere negotiations for settlement of the loss, which did not terminate until said 24th day of February, 1885.

We are of opinion that mere negotiations for a settlement are not sufficient to show a waiver of the condition. Gordon v. Amoskeag Fire Ins. Co., 20 N. H. 73.

Other points for reversal have been presented by the counsel for appellant, which we have not the space to give in their discussion. We have fully considered those relating to the contract of September 7, 1883, and as to the state of the title, and do not think they are tenable. For the errors pointed out the judgment below will be reversed and the cause remanded.

Judgment reversed.