Illinois Mutual Fire Insurance v. Malloy

Citations

• 50 Ill. 419

Syllabus

<p>1. Evidence—inference against a party who omits to testify to a material fact. In an action upon a policy of insurance, the defense interposed was, that the assured had obtained other insurance in another company, without giving the defendants notice thereof, as required by the terms of the policy. The assured testified in the case, but failed to testify, positively, that he had given the notice, and his was the only testimony on that fact. It was held, that as the fact, if it existed, must have been known to the assured, upon his failure to testify thereto positively, the inference must be he did not give the notice.</p> <p>2. Insurance—notice of other insurance—to whom it mitstbe given. Where it is required by the terms of a policy, that if the assured obtains other insurance he shall give the company notice of the fact, it is not enough that he should give the notice to one who had been the agent of the company, but had ceased long before the notice was given him, to act as such agent, and had given public notice of the fact, and his successors had given to the public their card. It was the duty of the assured to know who was the agent, and to make proper inquiries for that purpose.</p> <p>3. Same—omission of agent to endorse consent on the policy. Should the assured, however, give notice of his having obtained other insurance, to the proper agent of the company, it seems the omission of the agent to endorse consent on the policy would not prejudice the assured, as was held in New England Eire & Marine Ins. Go. v. Scliettter, 38 111. 166.</p>