dissenting:
Originally this suit was brought by David J. Thomas, for the use of Joseph and Henry Mann, on a policy of insurance issued by the Fame Insurance Company, but subsequently, on leave given by the‘court for that purpose, Joseph and Henry Mann were substituted as plaintiffs, and from that time until the 4th day of February, 1881, the suit progressed in their names. On the day last mentioned leave was given to restore Thomas as plaintiff, for the use of Mann Bros., as the suit was originally commenced, which was done, and the declaration amended by adding a count in indebitatus assumpsit. To.the declaration .as thus amended defendant pleaded the general issue, and a special plea averring the identity of the causes of actions in both counts, and that it was expressly provided in the policy on which the suit was brought, that no action, of any kind, either at law or in equity, for the recovery of any claim on the policy, should be maintainable unless such suit should be commenced within twelve months next after such loss or damage under the policy had occurred. The replication filed traverses the identity of the causes of action as set forth in the several counts of the declaration, and avers the suit was commenced within twelve months next after the loss under .the policy was sustained. On the first trial in the Superior Court plaintiff recovered a judgment against the company for the amount due on the policy. That judgment, on the appeal of the company, was. reversed by the Appellate Court, and the cause remanded. A second trial resulted, as before, in a judgment for plaintiff, which was also reversed by the Appellate Court and the cause remanded, but afterwards, by consent of parties, the court vacated the order previously made remanding the cause, and thereupon plaintiff prayed and was allowed an appeal to this court.
It- can not be known, from anything appearing in this record, for what reason the Appellate Court reversed the judgment of the Superior Court,—whether it was on the merits of the case as made by the evidence, or on account of giving instructions for plaintiff or refusing instructions asked for defendant. If it were for the latter reason, it is obvious plaintiff can not be permitted to insist in this case it was error in the Superior Court to give instructions asked on his own behalf, nor that it was error to refuse instructions asked by defendant, as that is a matter that does not affect him injuriously, but favorably. On looking into the record of the rulings of the Superior Court.on questions of law, it is not seen that any of its decisions were prejudicial to plaintiff, and whether they were to defendant can make no difference, as it is not complaining, and can not complain in this court on the present appeal, no cross-errors having been assigned. The errors assigned in this court are, that the Appellate Court erred in reversing the judgment of the Superior Court and in awarding costs against plaintiff, and in not affirming the judgment of the Superior Court and awarding costs against defendant. As -has been seen, defendant on this appeal is not complaining of any decision made by the Appellate Court, and it must be understood as .acquiescing in that decision, .■whatever it was. (Fogarty v. Ream, 100 Ill. 366.) It is equally obvious the party appealing to this court can not complain of any ruling of the Appellate Court on the instructions given or refused at the trial, as they did not and could not affect Jhis interests in the trial court. As before remarked, the instructions of the trial court were all favorable to him.
The action of the Appellate Court in vacating the remanding order must be treated as in effect rendering a final judgment in that court against plaintiff on the merits of the case as made by the evidence, without regard to any action or ruling of the Superior Court, otherwise there could be no appeal to this court from its decision. (Harzfeld v. Converse, 105 Ill. 531.) If it were merely a judgment of reversal, and not a final judgment, it is plain no appeal would lie. By the Practice act the Appellate Court, in cases of appeal or writ of error, may render final judgment and cause execution to be issued. Unless that was done in this case no appeal would lie, and as the parties themselves have so treated the judgment of the Appellate Court, this court may also regard it as a final judgment, in the sense those terms are used in the statute. It is clear, then, that the only question that can be considered on the present appeal is, whether the Appellate Court erred in reversing the judgment of the Superior Court, and in rendering final judgment against plaintiff upon the merits of the case as made by .the evidence.
In eases of this kind no assignment of error is allowable that will call in question the finding of the inferior or Appellate Court on controverted questions of fact. The finding of the Appellate Court upon questions of fact in such eases is therefore conclusive upon this court. But on turning to the transcript of the record of the Appellate Court, it will be seen that court have embodied no findings of fact in their judgment or final order, and hence, according to the decision in-Coalfield Coal Co. v. Peck, 98 Ill. 139, it must be understood the Appellate Court did not find the facts of the case to be other or different than they were found by the trial court to he. In Lake Erie and Western R. R. Co. v. Zoffinger, 107 Ill. 199, it was held, where there is a conflict in the testimony as to the material facts, and the jury find the issues for plaintiff, that finding implies a finding of every fact the evidence tends to establish in favor of plaintiff, and that the affirmance of the judgment by the Appellate Court implies a finding of the facts in the same way, which latter finding is, of course, conclusive on the Supreme Court. In that case there was evidence tending to establish certain facts, and it was further held, that conceding the facts to be as ihey must have been found, a clear case was made,—that is, under the law,—in favor of plaintiff, where a recovery was justified. The question then recurs, was it error in the Appellate Court to render final judgment against plaintiff .on the facts as they must have been found by the trial court ? And that is the only question that can be considered on this appeal, as the case now comes to this court.
The logic of the opinion of the majority of the court, as I understand it, is, that because the trial court refused a proper instruction asked by defendant, that would justify the-Appellate Court in rendering final judgment against plaintiff, as was done, although on the facts, as the evidence tends to establish them in his favor, he might be entitled to a judgment under the law, if properly applied,—rat least this court will not consider whether on the facts, as they must have been found, the law was for plaintiff, and he should have judgment. If that is the decision of this court I most respectfully dissent from, the conclusion reached—a conclusion, with all due respect to the majority of the court, it seems to me, that has but little in its support, either in reason or authority. In the first place, the action of the court in refusing the instruction complained of at the trial, is a matter over w'hich plaintiff had no control, and it was certainly not his fault the -■court refused the instruction; and second, I understand the -conclusion reached is in conflict with the decisions of this court in Harzfeld y. Converse, supra, Lake Erie and Western R. R. Co. v. Zoffinger, supra, Schertz v. Indianapolis, Bloomington and Western R. R. Co. 107 Ill. 577, and Schroeder v. Trade Ins. Co. 109 id. 157. In all of these cases, assuming the facts to be as they must have been found by the tidal and Appellate courts, it was considered as a question of law whether the plaintiff was entitled to recover. In Harzfeld v. Converse, the facts as found by the Appellate Court were embodied in the final order, but it can make no difference whether they were found in that way or by a judgment of affirmance, which implies a finding of the facts the same as they were found by the trial court. In Lake Erie and Western R. R. Co. v. Zoffinger, the facts were understood to be .found by a judgment of affirmance in the Appellate Court, and it was held as a question of law that on the facts as they must have been iound the plaintiff was entitled to recover. I understand the case of Coalfield Coal Co. v. Peck, 105 Ill. 529, is in entire harmony with the cases cited.
. In the light of these decisions I propose to consider .whether the facts in this ease which the evidence tends' to establish in favor of plaintiff, and which, it must be understood, were found in his favor by the.trial and Appellate courts, show a cause of action in his favor. I am of opinion they do,, and will state some of the reasons on which my opinion is based-
As respects the limitation clause of the policy, as to the time in which suit should be commenced to recover any loss or damage under the policy, and which was pleaded as. a de-, fence in the trial court, .1 concur in the views expressed in the opinion of the majority of the court. Without discussing that question further, it is sufficient to say I concur with the court in holding it is no defence to the present action, as it was commenced in apt time. On this point in the case I understand all the members of the court agree.
It will be seen the policy provides applications for insurance must be in writing, and must specify the construction and materials of the building to be insured, or containing the property to be insured, by whom occupied, whether as a private dwelling or otherwise, and whether any manufacturing is carried on within or about it, and that such “survey and description” shall be taken and deemed to be a part and portion of the policy to he issued thereon, and a warranty on the part of the assured. Another clause of the policy declares if any person effecting insurance in the company shall make any misrepresentation or concealment touching the risk to be assumed, the policy shall be void. The application in this ease discloses the-fact the building insured was used for manufacturing “clothes-pins aiid broom-handles,” and the defence most insisted on is the alleged omission of the assured to disclose the fact that a portion .of the building was .used, at the time the insurance was effected, for the manufacturing of shingles. As before remarked, the Appellate Court, by their judgment or final order, did not find the facts to be different from what they were found .by the trial court, and as that court found the issues for plaintiff, this court must presume the jury found every fact material to the issue in favor of plaintiff, that the evidence tends to establish. It will therefore be necessary to look into the record to see what facts the evidence establishes, or tends to establish. It appears, from uncontradieted testimony, that one Taylor, an insurance agent residing at Minosha, came to plaintiff and wished to insure the property that was afterwards included in the policy; that he stated over a number of companies he had, and among others he mentioned the Fame Insurance Company of Philadelphia, defendant in this suit; that he (Taylor) examined the premises, and was familiar with all the kinds of manufacturing being done in the building; that the application for insurance was made out by Taylor on a blank of the Planters’ Insurance Company, and was addressed to the Mercantile Insurance Company of Chicago; that assured answered all the questions put to him by Taylor truthfully, so far as he knew, and noticed the answers when he signed the application; that Taylor did not ask plaintiff the question contained in the application, “Name the property,” to which the answer is written, “Clothes-pin and broom-handle factory; ” that he did ask, “How wide was it, ” (the building,) and plaintiff answered, “54x40that he did not ask, “What is the precise kind of goods made, and of what material; ” that he did not ask any question of that sort; that Taylor was around the premises before he took the application, and knew that plaintiff was manufacturing shinglés in the building'; that plaintiff looked over what Taylor asked, and looked over his own answers; that he looked over the written answers briefly, but he could not say he looked at every one of them; that when Taylor had filled it up “he turned the application over to him to sign it, and he did sign it; ” that at the time he signed it there was a kind of plat on the back of the application, but no diagram; that Taylor, when he took the application, represented that he was an agent of the defendant company; that plaintiff knew Taylor was in the insurance business at Minosha, and had an office there; that he received the policy from Taylor in about a week or ten days after the application was made, and paid him the premium ($50) about thirty days thereafter. It also appears that Taylor sent the application to Eastman, an insurance broker at Chicago; that Eastman gave it to the agent of defendant at Chicago ;■ that such agent issued the policy and delivered it to Eastman, and tha.t Eastman sent it to Taylor, who, as has been seen, delivered it to plaintiff.
Both parties disclaim the agency of Taylor in the premises. Without determining whether he should be regarded in law as the agent of defendant, it is quite certain he was not the agent of plaintiff, and plaintiff is in no way answerable for any misconduct on his part. His position was that of an insurance solicitor, and he acted iñ this transaction in that capacity. It was known to the agent acting, on behalf of defendant that Taylor was an insurance agent. It does not appeal’ the agent of defendant, when he issued the policy, knew the application for it. had been taken by Taylor, but he did know it came to him from Eastman, who was an insurance broker residing in Chicago. When insurance companies take applications for insurance from brokers in that business, they will not be permitted to treat such brokers as the agents of the assured, unless it clearly appears that relation existed. The better rule is, they shall be required to rely upon the integrity of such brokers, and if they practice any fraud upon the companies without the connivance of the assured, or any wrongful conduct on his part, the companies must bear the loss. All risk can be avoided by the companies refusing to take applications for insurance from any brokers except such as may be known to be entirely responsible. Any other rule ’* would make it possible to practice great frauds on parties wishing insurance. Applying this reasonable rule to the facts óf this case, if Taylor did anything that was wrong in taking the application upon which the policy was issued, his misconduct should not be imputed to plaintiff as wrongful conduct on his part.
ít is said the diagram on the back of the application for insurance was not accurate, and that defendant’s agent was deceived by it. That may be true, but whose fault was it ? It does not appear it was the fault of plaintiff, for he testified there was no diagram attached to it when he signed the application, and the jury must have so found, as no witness contradicts him in that respect. Nor does it appear who made the diagram; but as it was not made by or authorized by plaintiff, it is immaterial, so far as this case is concerned, who made it.
But a more material inquiry is, whether plaintiff is responsible for the omission to state in the application that shingles were also manufactured in the building to be insured. The application does show that “clothes-pins and broom-handles” were manufactured in the building. This answer was written, by Taylor himself, without any question having been put to plaintiff on that subject. But the answer-as written was true, and there was no breach of the warranty implied in every application for insurance in that respect. So far as plaintiff answered questions propounded to him by Taylor, it does not appear that he misrepresented anything, or made any false statements. Was he guilty of any concealment touching the risk to be assumed? The only complaint in this regard is the omission to state that shingles were also' manufactured in the building about to be insured. The assured was not asked to make any statement in that regard, and gave none. It was known to Taylor, who solicited the risk, that shingles were manufactured in the building, and plaintiff may have supposed it was not necessary to state that which was fully known to the party acting. There is not a single fact established by the evidence that tends to show the assured did not act 'in the utmost good faith in making the application on which the policy was issued. The-rule of law is, that when the assured makes a full and fair disclosure of all the facts that would materially affect the risk, so far as the company wish to interrogate him, and the agent, on behalf of the company, writes false answers to the questions propounded, without the knowledge of assured, and assured in good faith signs the application, he will not be responsible for any wrongful conduct of the agent. As before remarked, the broker taking the application in this case was in no sense the agent of the assured, and he was in no way responsible for any wrongful conduct of which he' may have been guilty, if he was guilty of any. Here the company relied on the'work done by the broker, and adopted it as-the basis of the insurance contract. In such eases there is much more reason for holding the broker was the agent of the company than of the assured, and if either party is to suffer from his misconduct, it should be the company that adopted his work. As has been seen, it appeared on the face of the application that “clothes-pins and broom-handles” were manufactured in the building on which the risk was to be taken. It will be noticed the application contained a question following the one under which was written, “Clothespins and broom-handles, ” “Is there any other business carried on in the building or buildings?” That question was not propounded to assured, and was not answered at all. It does not appear assured knew the application contained any such question. The agent of defendant says he read the application very carefully and thoroughly, and if so he must have known before he issued the policy that question was not answered. Below the signature of applicant there was a printed note, as follows: “Every question must be answered, or the application will be returned. ” Had the agent to whom the application was delivered observed the direction there given, it would have been his duty to return the application to applicant, that he might have an opportunity to answer the question, if it had been inadvertently overlooked. This would have been nothing more than fair dealing with applicant. . The provision as to the unanswered question at the bottom of the application distinctly notified the company if they did not wish to issue the policy without that question being answered, the application should be returned to the applicant. Omitting to return the application was equivalent to an express waiver of an answer to that question. Had it been returned, and the attention of the applicant called to it, no doubt his answer would have disclosed the fact shingles were also manufactured in the building. So far as the application disclosed the kind of goods manufactured in the building it was entirely accurate, and if the company desired fuller information, it should have returned the application for an answer to the question not answered, which would have given the necessary information. It may well be concluded the company was willing to take the risk without that question being answered. If so, it was their privilege, and if loss ensued on that account, it should he attributed to their want of due care in that regard.' A mere omission to answer a question is not a warranty that anything remains to he answered,' and so in case of a partial answer it has been held the warranty can not he extended past the answer. Cases sustaining this view of the law are Delleber v. Home Life Ins. Co. 69 N. Y. 256; Liberty v. Hall Ins. Co. 7 Gray, 261.
Assuming, as must he done, the jury found all the facts in favor of plaintiff the evidence tends to establish, I am of opinion the law is for plaintiff, and that the final judgment against him in the Appellate Court is erroneous, and .should be reversed. o