The defendant in error has filed a petition for a rehearing on the ground that the bill did not allege a breach by the defendant in error of its contract with the Hurst Company to defend the suit of the plaintiff in error against the Hurst Company. The bill alleged the occurrence of the accident, notice to the defendant in error of the accident and of the plaintiff in error's claim, the bringing of the suit by plaintiff in error against the Hurst Company, negotiation of the defendant in error with him *Page 262 and its offer of $100 to settle with him, and further alleged that the defendant in error helped the Hurst Company in the defense by procuring and furnishing evidence. The answer admits that the defendant in error had knowledge of the plaintiff in error's suit against the Hurst Company soon after it was begun, and alleged that it informed the Hurst Company that the accident was not covered by the policy, and that the Hurst Company knew that the accident was not covered by the policy and accepted this statement and employed attorneys of its own to defend the suit. The bill contained no allegation that the defendant in error refused to defend the suit, but the answer supplied the missing allegation by its averment that the defendant in error told the Hurst Company that the accident was not covered by the policy and the Hurst Company employed its own lawyers to defend the suit. While the bill was no doubt subject to demurrer, the answer supplied its deficiency, and on the whole record it stands admitted in the pleadings that the defendant in error refused to defend the suit. The parties have assumed that this was the state of the record and have argued the cause on this basis. The plaintiff in error's first proposition, as stated in his brief, was: "When the Globe notified Hurst Company that the accident was not covered by the policy and refused to defend the suit, the Globe not only then presently broke insuring agreement 2 but repudiated its contract, thereby committing an anticipatory breach of the entire policy and excused Hurst Company from any further performance of conditions on its part." The point was presented at length in the argument, with the citation of a number of authorities. The defendant in error made no contention that the pleadings presented no such issue. In its brief it said: "No contention is made at bar that the Globe Indemnity Company took any part in the defense of the suit in the circuit court of Cook county in which John Kinnan recovered his judgment for personal injuries." Again it said: "Moreover, *Page 263 if the Globe refused to defend a suit or refused to investigate an accident reported to it that was a matter solely between the defendant in error and its assured. The obligation did not run to the benefit of any third party such as Kinnan. No one but the assured could complain if the obligation was not carried out."
The question of the liability of the defendant in error for refusing to defend was recognized by both sides as presented by the record, no suggestion was made of any question of pleading but this question was submitted on the merits without objection. The objection, even if it had been a valid one, cannot be made for the first time on a petition for rehearing.
Rehearing denied.