Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jorgensen v. Baker

MARCH 23, 1959.

N. CHRIS JORGENSEN, FRANCIS J. CURTIS, TRUSTEE IN BANKRUPTCY FOR BROKERS INSURANCE AGENCY, INC., E. KEITH BOWERS, DOING BUSINESS AS ACE INSURANCE AGENCY, AND M.J. LAW, APPELLANTS,

v.

RUSSELL BAKER, JOHN C. MCKENZIE AND DWIGHT HIGHTOWER, INDIVIDUALLY, AND AS CO-PARTNERS, DOING BUSINESS AS BAKER, MCKENZIE AND HIGHTOWER, APPELLEES.



Appeal from the Superior Court of Cook county; the Hon. HARRY M. FISHER, Judge, presiding. Affirmed in part, reversed in part and cause remanded with directions.

JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.

Rehearing denied May 12, 1959.

This is an appeal by the plaintiffs from an order dismissing their third amended complaint.

The complaint has eleven counts. Three are for money had and received; the others are for fraud and deceit. The plaintiffs, who were insurance agents and brokers, allege that in the early months of 1950 they were induced to place insurance risks with the defendants, who were engaged as insurance carriers under the name of London, Amsterdam and Zurich Assurance Group. They aver the defendants issued certificates of insurance but gave no protection to certificate holders and refused to pay claims when they arose; that the plaintiffs had to make these good, and had to return premiums to the insured, under compulsion of the Insurance Department of the State of Illinois.

The amended motion to dismiss is under Sections 45 and 48 of the Civil Practice Act, Ill. Rev. Stat. 1957, Chap. 110. It raises the general objection that the complaint does not state a cause of action and that it is replete with conclusions and immaterial allegations. It raises the particular objection that the suit of the Brokers Insurance Agency, Inc., is barred by the statute of limitations.

The decisions on these objections are two of the issues before us. The third is the additional reason given by the court for dismissing the complaint, which was that the individual plaintiffs were particeps criminis with the defendants. Because of their length we will not set forth either the complaint or the motion. The specific allegations which are alleged to be fraudulent are:

"A. That the Assurance Group had been properly incorporated, was validily existing and capable and able to properly accept fire and casualty insurance risks.

"B. That the Assurance Group was at said time over three years old.

"C. That the Assurance Group was capitalized at Two Hundred fifty thousand dollars ($250,000) and had assets in excess of One Million Dollars ($1,000,000).

"D. That the Assurance Group had standards of solvency and management meeting the requirements necessary for the protection of policyholders in accordance with Section 445 of the Illinois Insurance Code of 1937 (Ill. Rev. Stats., 1949, c. 73, sec. 1057).

"E. That the Assurance Group had adequate assets, resources and reserves to pay all claims promptly as presented and proved.

"F. That the Assurance Group had established a Two Hundred thousand dollar ($200,000) Trust Fund in the State of Illinois, and had adequate assets, resources and reserves to thereafter increase its local deposits as needed or required by the Statutes of Illinois to protect all policyholders in Illinois."

The complaint charges that these were material representations and were untrue; that the defendants knew them to be untrue and made them to induce the plaintiffs to place insurance with the defendants; that the plaintiffs relied upon them, were deceived and defrauded thereby and suffered monetary loss and were injured in their businesses and reputations as well.

The allegations of a complaint must state all essential information together with the elements necessary to constitute the cause of action. It should do this clearly and concisely. It must avoid, on the one hand, generalities, and, on the other, evidentiary facts. This is not always easy to do; a pleader often faces the dilemma of stating too little or too much. The plaintiffs seem to have had this difficulty. One of their earlier complaints was objected to because it pleaded evidence. The record suggests that in an effort to meet the criticism of the judges who sustained previous motions to dismiss, details were eliminated, only to face the opposite objection that too few were included. The progressive Civil Practice Act of Illinois recognizes that the purpose of pleadings is to inform the opposite party and the court of the nature of the action and the facts upon which it is based. It provides that pleadings shall be liberally construed to the end that controversies may be ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.