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ROGGE v. MENARD COUNTY MUTUAL FIRE INSURANCE CO.

June 8, 1960

JOHN P. ROGGE, PLAINTIFF,
v.
MENARD COUNTY MUTUAL FIRE INSURANCE COMPANY, FARMERS AND GRANGE DISTRICT MUTUAL TORNADO INSURANCE COMPANY, AND ELSIE B. ROGGE, EXECUTOR OF THE LAST WILL AND TESTAMENT OF ANDREW J. STOUT, DECEASED, DEFENDANTS.



The opinion of the court was delivered by: Poos, District Judge.

John P. Rogge filed this suit here on October 26, 1959, against Menard County Mutual Fire Insurance Company, Farmers and Grange District Mutual Tornado Insurance Company and Elsie B. Rogge, as executor of the last will and testament of Andrew J. Stout, deceased, on a policy of fire and tornado insurance issued to A.J. Stout on June 11, 1958, covering a policy period of five years to June 11, 1963, to recover for a fire loss that occurred on October 27, 1958. Likewise plaintiff, on the same day, filed a similar suit in the same cause of action in the Circuit Court of Menard County, Illinois, except that in this suit the executor of the estate joins him as plaintiff.

The complaint alleges that corporate defendants and Elsie B. Rogge, executor of the estate of Andrew J. Stout, deceased, are citizens and residents of Illinois, and that plaintiff is a resident and citizen of Houston, Texas, and that the amount involved exceeds, exclusive of interest and costs, the sum of $10,000; that jurisdiction is invoked because of diversity of citizenship of the parties hereto.

The further allegation is that on June 11, 1958, and prior thereto, plaintiff was the owner in fee simple subject to a life estate in Andrew J. Stout of certain property located in Section 16, Township 17 North, Range 7 West of the Third Principal Meridian, Menard County, Illinois, which property was improved with a two-story dwelling house and other out buildings; that on June 5, 1958, the deceased, acting on his behalf and as agent of plaintiff, applied to defendants for a policy of insurance, insuring Stout, as life tenant and plaintiff as remainderman, against loss of improvements by fire or windstorm, and said corporate defendants thereupon issued their policy of insurance and named A.J. Stout as the insured under said policy instead of naming A.J. Stout as life tenant and John P. Rogge as remainderman, as the persons insured under said policy as mutually agreed upon by the corporate defendants and A.J. Stout on his own behalf and as agent for plaintiff.

The further allegation is that on October 27, 1958, the dwelling house was destroyed by fire, smoke and explosion; that on said date Stout died of injuries sustained by him in said fire; that the fire loss was in excess of $25,000, the amount of the policy; that on and prior to date of loss plaintiff and A.J. Stout had an insurable interest in said property so destroyed by fire; that plaintiff and the personal representative of A.J. Stout, the executor of his estate, have performed all the conditions of said policy on their part to be performed and that no part of the policy has been paid, although demanded.

The prayer of the complaint here is:

    (1) that said policy of insurance be reformed
  to name A.J. Stout and John P. Rogge as the
  insured persons under the aforesaid policy.
    (2) that plaintiff have judgment in such amount
  as shall appear to be due him for his interest in
  said property under said policy.

The prayer of the complaint in the State Court is that the policy be reformed to include John P. Rogge as an insured, for judgment in favor of both, and that the Court divide the judgment between plaintiffs.

The policy is attached to the complaint as Exhibit "A". The policy provides:

  "do insure A.J. Stout and legal representatives
  in the sum of $25,000.00 for loss by fire,"

and further states the facts as alleged in the complaint here and in the State Court.

The corporate defendants file a motion to dismiss on the ground that the same action is pending in the Circuit Court of Menard County, Illinois. They attach to the motion a certified copy of a complaint filed by plaintiff herein wherein he and Elsie B. Rogge as executor of the last will of Andrew Stout, deceased, join as plaintiffs against the corporate defendants. This complaint was filed on October 26, 1959, and was entitled "Elsie B. Rogge, Executor of the Last Will of Andrew Stout, deceased, and John P. Rogge, plaintiffs, vs. Menard County Mutual Fire Insurance Company and Farmers and Grange District Mutual Tornado Insurance Company, defendants, No. L. 59-20." The cause of action alleged claims on the same policy of insurance and is in effect the same cause of action as that claimed here.

The allegations of the motion are that plaintiff is:

(1) Seeking relief in the State Court,

(2) This action unnecessarily burdens this court and ...


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