Miller v. Assureds' National Mutual Fire Insurance, 184 Ill. App. 271 (1913)

Oct. 16, 1913 · Illinois Appellate Court

184 Ill. App. 271

Andrew J. Miller, Appellee, v. Assureds’ National Mutual Fire Insurance Company of Decatur, Illinois, Appellant.

(Not to be reported in full.)

Abstract of the Decision.

1. Insurance, § 705 ^* —when plea of failure of consideration for reinsurance contract demurrable. In an action to recover on a fire insurance policy, the contract being an agreement to reinsure the risks of another company, with conditions requiring the policy holder to assign to the defendant whatever claim he might have against such other company for unearned premiums and pay the balance in cash, action of court in sustaining demurrers to defendant’s pleas of failure of consideration setting up that the agreement on the part of plaintiff to assign his claim against the former company without in any way averring that no assignment of the claim was made, held not error.

Appeal from the Circuit Court of Macon county; the Hon. William G. Cochean, Judge, presiding.

Heard in this court at the October term, 1912.

Affirmed.

Opinion filed October 16, 1913.

Rehearing denied December 3, 1913.

Certiorari granted by Supreme Court.

Statement of the Case.

Action by Andrew J. Miller against Assureds’ National Mutual Fire Insurance Company of Decatur, Illinois, a corporation, to recover on a policy of fire insurance reinsuring the risk of another company. From a judgment in favor of plaintiff for two thousand one hundred and seventy-three dollars, defendant appeals.

This is the second appeal of this case to this court. Upon the former appeal the judgment of the trial court was reversed and the cause remanded. The former opinion was written by Mr. Justice Puterbaugh, and the facts are fully stated in the former opinion found in 164 Ill. App. 237.

McGinley & Wiley and Gillespie & Fitzgerald, for appellant.

Sheridan & Gruber and Leforgee, Vail & Miller, for appellee.

* See Illinois Notes Digest, Vols. XI to XV, same topic ancl section number.

* See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

Mr. Presiding Justice Philbrick

delivered the opinion of the court.

2. Witnesses, § 298 ^* —when character evidence as to reputation for truth and veracity not too remote to impeach witness. To impeach the character of witnesses for their truth and veracity, evidence offered to show their reputation at a place where they resided two years prior to the time of the facts involved in controversy, held admissible, and action of court in sustaining an objection to such evidence because too remote, held error, though not prejudicial error.

3. Appeal and error, § 1455 ^* —when error in sustaining demurrer to plea cannot he complained of. Defendant cannot complain that trial court improperly sustained a demurrer to his plea where he was permitted upon the trial to introduce evidence which could only have been proper under his plea.