Oleson v. German Insurance, 84 Ill. App. 41 (1899)

July 20, 1899 · Illinois Appellate Court

84 Ill. App. 41

O. N. Oleson v. German Insurance Co.

1. Appellate Court Practice—Where no Propositions of Law are Submitted to the Trial Oourt.—Where the trial is by the court without a jury, and no propositions of law are submitted, there is nothing for che Appellate Court to pass upon.

Assumpsit, on an insurance note. Trial in the Circuit Court of Livingston County; the Hon. George W. Patton, Judge, presiding. Finding and judgment for plaintiff; appeal by defendant. Heard in this court at the May term, 1899.

Affirmed.

Opinion filed July 20, 1899.

Joseph D. Mitchell, attorney for appellant.

M. E. Wright, A. C. Norton and F. W. Winkler attorneys for appellee.

Mr. Justice Higbee

delivered the opinion of the court.

This was an action instituted by appellee before a jus-. tice of the peace upon a note for $105 given by appellant ' to appellee as premium on a policy of insurance against fire, lightning, tornado, cyclones or wind storms, for a period of five years.

In the written application for the policy of insurance signed by appellant, he stated that he was “ the. absolute owner of the property proposed to be insured.” The policy of insurance which was afterward issued to appellant, contained a provision that it should be void “ if the assured shall not be the sole and unconditional owner in fee of said property.”

It appeared from the evidence that appellant was not the sole owner of the property named in the policy, but that a portion of it was owned by his mother. Appellee, however, Avas ignorant of the fact that appellant Avas not the sole OAvner of the property when the policy was issued. Appellee obtained a judgment before the justice of the peace and upon appeal to the Circuit Court a jury Avas Avaived, and there was a trial before the court, Avhich resulted in a finding and judgment in favor of the insurance company for the amount of the note and interest.

The defense Avhich appellant offered to the note was based upon the theory that the policy of insurance was void because he was not the sole and unconditional OAvner of the property at the time the policy was issued, and that therefore there was no consideration for the note given for the premium on the policy. On the other hand appellee contended that under such circumstances the policy could be construed to be void or not, at the option of appellee, and also that as appellant had signed the Avritten application, stating he Avas the owner of the property in question, he Avas estopped from denying such statement in this proceeding.

Upon the trial of the cause in the Circuit Court, no Avritten propositions to be held as law in the decision of the case, Avere submitted to the court, as provided for by statute. There was no controversy as to the facts in the case. The questions as to whether, under the facts in the case, the provision of the policy in reference to the ownership of the property rendered it void, or only voidable, and if voidable only, whether there was a consideration for the note, and also as to whether appellant is now estopped from denying the ownership of the property by reason of the statement made by him in his written application for the insurance, are all questions of law and not of fact.

As there were no propositions of law submitted to the trial court, no question is, under the circumstances of this case, presented by the record for our decision. Boyce v. The Commercial Publishing Co., 169 Ill. 256; Allison v. Leslie, 40 Ill. App. 441.

The judgment of the court below in this case will therefore be affirmed.