Waterman v. Raymond.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

This was an action commenced before a justice of the peace, to recover a penalty for obstructing a public highway. It resulted in a judgment against plaintiff in error, who prosecuted an appeal to the Circuit Court, where the cause was tried before the court and a jury, when a verdict was found against him, and judgment was rendered upon the verdict, from which this writ of error is prosecuted. There are numerous errors assigned upon the record, only one of which we deem it necessary to consider.

On the trial below plaintiff in error proved the death of Thomas A. Henry, a former county surveyor. He then offered his original book of the minutes of surveys, which the court refused to admit in evidence, and exception was taken. He then offered the certificate of a survey made by Henry as county surveyor, of section eighteen, taken from the original records of surveys in the county surveyor's office and duly certified to be a correct copy from the original, but it was likewise rejected by the court, and exceptions were taken. The complaint charges, and the whole controversy grows out of, the obstruction of a road located on the west line of section twenty. The survey and location of the road calls for that line, and when that can be ascertained, the question as to whether the road was obstructed becomes of easy solution. But owing to the obliterating effects of time, the difference in the memory of witnesses, and the impossibility of reducing the principles of mathematics with accuracy and precision, to practical application, we find in this as in many other cases, that the identification of a corner, or the tracing of a line of a survey, long since made, is attended with difficulty, and its correctness is hard to demonstrate.

But inasmuch as the section course of seventeen, eighteen, nineteen and twenty is common to each, and forms one end of the lines dividing those sections, it is important to ascertain its precise location and identity. The line between nineteen

The Peoria Marine and Fire Insurance Company v. Robert Hervey et ux. and twenty being in dispute, if the original course, common to each of these four sections is found and established, the north end of the line between nineteen and twenty would thereby be ascertained, and this would necessarily aid largely in ascertaining the original line between sections nineteen and twenty. In this view and for this purpose, any legitimate evidence tending to establish the common corner to these four sections, would be eminently proper, and should be admitted. The seventh section of the act regulating the duties of surveyors (R. S. 524), provides, that each county surveyor shall provide himself with a well bound book, in which to note each survey made by him. He is required to carefully note the same therein, giving the name of the person, the survey of whose land is so recorded, and describing, as near as practicable, the metes and bounds, and note the date of the survey. It also declares that such record shall be open to inspection by every person who may think himself interested. It also provides that a certified copy of the survey, under the hand of the surveyor, shall be admitted as prima facie evidence in any court of record in this State. Now, it appears that Henry was a county surveyor, who made the entry in the discharge of his official duty, and in the mode required by the statute. The copy of the minutes of that survey was duly certified by the county surveyor, and this copy tended to prove the issue, and was prima facie evidence, and the certificate should have been admitted. In rejecting this evidence the court below erred, and the judgment must be reversed and the cause remanded.

Judgment reversed.

THE PEORIA MARINE AND FIRE INSURANCE COMPANY.

v.

ROBERT HERVEY AND FRANCES W. HERVEY, et ux.

1. PARTIES-assignee of insurance policy may sue. An action of assumpsit will lie, by the assignee of an insurance policy, on the express agreement and promise of

The Peoria Marine and Fire Insurance Company v. Robert Hervey et ux.

the insurance company to pay the assignee for any loss when a renewal receipt is issued to him, after the assignment and the payment by such assignee of the premium on the renewal.

2. Such renewal and payment of the premium by the promisee, is a new promise for a valuable consideration, for the breach of which an action of assumpsit will lie by the assignee and promisee.

APPEAL from the Superior Court of Chicago.

This was an action of assumpsit brought in the Superior Court of Chicago by Frances W. Smith against the Peoria Marine and Fire Insurance Company. The marriage of the plaintiff with Robert Hervey being suggested to the court, he was made a party plaintiff.

The cause was submitted to the court for trial without a jury, and the court found for the plaintiffs, and assessed the damages at one thousand and sixty-two dollars.

A motion for a new trial was made and overruled, and a judgment entered on the verdict.

From this judgment the insurance company appealed to this court, and assign several errors; the second of which was the one principally insisted on, and is as follows: That an action of assumpsit cannot be maintained upon the policy in question.

As the opinion of the court is based chiefly upon this assignment of error, and as it contains all the pleadings and evidence necessary to a full understanding of the case, they are here omitted.

Messrs. SCAMMON, MCCAGG and FULLER, for the appellants, made these points:

1. The first point we make is this: that the policy of insurance issued to Bishop is the only contract of insurance shown in the case, and that the plaintiffs cannot maintain an action upon it, in their own names, as assignees of Bishop.

A fire insurance policy is not assignable, so as to enable the assignee to bring suit upon it, in his own name. Angell on Fire and Life Ins. § 11 of introduction, and § 211, and note;

The Peoria Marine and Fire Insurance Company v. Robert Hervey et ux.

2 American Leading Cases, 432; Jessel v. The Williamsburg Ins. Co. 3 Hill, 88.

In this case the insurance company had given its written consent to the assignment of the policy to the plaintiff, but the court held, on common law principles and authorities, that the assignee could not sue in his own name.

Under the general rule of the common law, "a contract of insurance is not assignable, so as to give an action in his own name to the assignee, though by the terms of the policy the contract is with the assured and his assigns, and the loss payable to him and his assigns." Rollins v. Columbian Fire Ins. Co. 5 Foster, N. H. 204; Folsom v. Belknap County Mutual Ins. Co., 10 Foster, N. H., 231; Shepherd v. Union Mutual Fire Ins. Co., 38 N. H., 232; Conover v. The Mutual Ins. Co. of Albany, 3 Denio, 254, citing and approving the case in 3 Hill, 88.

The same rule is recognized in the cases of Flanagan v. The Camden Mutual Ins. Co. 1 Dutcher, N. J., 506; and Bayles v. The Hillsborough Ins. Co., 3 Dutcher, 163.

These cases establish the proposition stated above, that at common law, the assignee of a policy of insurance cannot sue upon it in his own name, and this has been a well settled rule of law for more than one hundred years. Dhegetoft v. The London Assurance Co., Mosely, 83; Carter et al. v. The United Ins. Co., 1 Johns. Ch. 463.

The cases decided in New York, New Hampshire, Massachusetts, and New Jersey, in which actions have been sustained in the names of the assignees of policies, are all either cases of mutual insurance companies, whose charters provided for bringing suits in the names of the assignees, or there was a general law of the State, authorizing suits in the name of the assignee, or else a stipulation in the policy to that effect, and those cases in no degree conflict with the doctrine contended for.

It may be claimed that the payment by Mrs. Smith of the premium for the renewal of the policy and the renewal receipt, made a new contract between her and the company,

The Peoria Marine and Fire Insurance Company v. Robert Hervey et ux. and that this action may be maintained for a breach of that

contract.

To this we reply, first, Bishop assigned to her his policy, and, secondly, that the contract of renewal was reduced to writing, as expressed in the renewal receipt, whereby the company, in consideration of forty-five dollars paid by the holder of the policy, "consented to the continuance of the risk originally insured," &c., for one year longer. This was an extension of the contract for that time, on the same terms; but not a new contract either in form or substance. The renewal receipt did not change the parties, or the terms of the contract, nor alter its legal effect.

This was expressly decided in the case of Herron v. The Peoria Marine and Fire Ins. Co., 28 Ill. 235, where the effect of such a renewal of the original policy, upon the terms and legal character of the instrument, was fully considered by this court, and it was held that it did not even change it from a sealed to an unsealed instrument; and we insist that if it did not have that effect, it cannot be construed to change the parties to the contract, by implication, when it does not profess to do so, but only "to continue the risk originally insured." Again we answer, that the evidence, taken together, wholly fails to show a new contract with Mrs. Smith. The contracts of the company are evidenced by the policy and the renewal receipt. Admit that Mrs. Smith paid the money for the renewal, still that amounts to nothing more than this: that the company. agreed that the original insurance, made with Bishop, should be continued for her benefit, and that in case of loss, the company would waive the right to object that Bishop was not the owner of the property insured, at the time of the loss.

2. In American Leading Cases, 432, the legal effect of the consent of the company to the assignment of the policy is most forcibly and accurately stated as follows: "When the assent of the insurer is given to the assignment of the policy, it does not appear to operate as a new promise founded upon the former consideration, but as a mere waiver of the right possessed in the 4-34TH ILL.