Chicago Bonding & Insurance v. Oliner

Stockbridge, J., delivered the opinion of the Court. The appellee, Abraham Oliner, resided at the time of the occurrence hereinafter mentioned in the Lake Court Apartments on Linden Avenue and had been engaged in the liquor business at Howard and Camden Streets.. When what is known as the War Time Prohibition -Vet went into effect, he closed out his business at Howard and Camden Streets and moved up certain unsold liquors to the apartment bouse building where his apartments were located. In the cellar of that building was a locker-room, and in that he placed some of the whiskey moved, and, by way of protecting himself against possible loss, took out an insurance policy of the species known as burglary, larceny or theft insurance.

This policy was issued to. Hr. Oliner on the 18th of September, 1919. Thereafter, and some time between the issuance of the policy and the 25th of September, his locker was broken into and there were taken from it fifteen cases of whiskey of the brands known as Three Feathers, Canadian Club, Green River, original Roxburv Rye, and Havner.

The policy issued by the appellant to Hr. Oliner expressly covered property of this description by providing that it should cover: “Money, sterling silverware, precious stones, watches and jewelry, plated ware, wearing apparel, furs, laces, rugs, tapestries, paintings, clocks, bronzes, bric-a-brac, library books, musical and professional instruments, sporting outfit, bicycles, and household goods and personal effects common in residences generally, including cigars, wines, liquors, and family stores, also gas and electric light fixtures, and plumbing, excluding articles listed in Statement Ao. 10 of (lie schedule, sections (b), (c), (d) and (e)”; ⁴¹⁰ This liquor, which was so’ taken, had been purchased by Mr. Oliner at some time previous to the closing of his store at Howard and Camden Streets at varying prices', and upon the discovery of his loss. Mr. Oliner made demand on the company for loss in accordance with the terms of the policy. Eight exceptions were reserved during the trial, but for the purposes of this appeal they may all be considered together, as they form part of a connected whole.

No question is raised by the insurance company as to the loss by Mr. Oliner of the property in question, and the de^fence upon which the insurance company relies to exonerate it from liability is that, the prohibition order having gone into effect at the time the liquors were taken, they were of no value, and therefore Mr. Oliner suffered no loss. This is raised by objections to evidence which constitute the first seven bills of exception, and the ruling of the court on the defendant’s second prayer, which ruling is made the defendant’s eighth bill of exceptions. In discussing the case in its entirety, it will be sufficient therefore to see whether or not the trial court committed any error of such a character as to work a serious injury to the insurance company. To answer this satisfactorily there are one or two facts to be borne in mind.

The first of which is a correct conception of the nature of a contract like the one here presented. Thus an insurance contract is one whereby, for a stipulated consideration, one party undertakes to compensate the other for loss on a specified subject by specified perils. Black's Law Dictionary (2nd Ed.) 641. This is sometimes spoken of as a contract of indemnity. 16 A. & E. Enc. of Law, 840; 14 R. C. L., 839.

A large number of cases were cited, and others migjht have been, descriptive of the contract, wherein the contract is defined in the same or equivalent terms. Nor does this Court understand that there was any serious contention made upon this matter by counsel for the appellant. The real question comes in fixing the rule of damages in such a case. ⁴¹¹ "When we turn to an examination of the various cases, we encounter the expression “'value,” “market value” and “fair market value,” hut for the present purpose these may