Before MAJOR, Chief Judge, and DUFFY and FINNEGAN, Circuit Judges.
This action was to recover upon a certain policy of insurance issued by the defendant to the plaintiff for the alleged losses of certain furs and jewelry described in the complaint as the property of his former wife, Annette Neidhoefer. Recovery was sought by the plaintiff as the named assured in said policy and also under an assignment by Annette Neidhoefer of all her right, title and interest in and to the said policy and claims thereunder. The complaint admitted failure to file a detailed sworn proof of loss as required by the policy but alleged that this requirement had been waived by the defendant.
The defendant's answer put in issue the alleged losses of the furs and jewelry described in the complaint and, if lost, their identity with those described in the policy of insurance. The answer alleged that the claimed losses, if any, were not covered by the policy in that Annette Neidhoefer was not a member of the plaintiff's family of the same household but, on the contrary, was living separate and apart from him. Further, the answer alleged that the policy insofar as it insured the property of Annette Neidhoefer had been cancelled by her prior to the alleged losses. Also, the defendant denied that it had waived the provision of the policy requiring the assured to file a detailed sworn proof of loss.
After the issues were joined certain admissions of fact by the plaintiff, in response to defendant's request, were filed. Thereupon, the case was tried by a jury which answered a special interrogatory submitted by the court and returned a verdict favorable to the plaintiff. Prior to the trial, defendant's motion for summary judgment was denied. On the trial, both at the close of the evidence introduced by the plaintiff and at the close of all the evidence, the defendant moved for a directed verdict in its favor. In each instance the court took such motions under advisement. After verdict, the defendant renewed its motion for summary judgment theretofore filed, its motions for a directed verdict, its alternative motion for judgment notwithstanding the verdict, and its further alternative motion for a new trial. On July 1, 1949, the court denied all of defendant's motions except that for judgment notwithstanding the verdict, which was allowed, and the verdict of the jury and its answer to the special interrogatory were vacated and set aside and judgment was entered for the defendant. From this judgment the appeal comes to this court.
Thus, our function is to review the action of the court in setting aside the jury's verdict and entering judgment for the defendant, and the propriety of this ruling is dependent upon whether plaintiff was precluded from recovery as a matter of law or whether he failed to offer proof on any material issue of fact sufficient to present a jury question.
In the beginning, it is pertinent to note that the plaintiff is in the unfortunate position of attempting to recover on an insurance policy without offering the testimony either of the plaintiff in whose name the policy was issued or that of Annette Neidhoefer, admittedly the owner of property alleged to have been stolen. This is particularly so in view of the issues raised by the defendant. Evidently no other person could be expected to be in as good position to relate the circumstances under which the property was alleged to have been stolen, its value and, even more important, its identity, as that which was described in the policy. Also, they undoubtedly were in a better position than any other person to know whether Annette Neidhoefer at the time of the alleged losses was a member of plaintiff's family of the same household, and it would seem that plaintiff was in a better position that any other person to give testimony as to the circumstances relied upon to show that the defendant waived the provision of the policy relative to a sworn proof of loss.
Notwithstanding the importance of these parties as witnesses, the record discloses no reason why their testimony was not produced in person or, if that was not feasible, by deposition. The rule is well established and we think it is of significance in the instant situation that the failure to produce evidence, which under the circumstances would be expected, gives rise to a presumption against the party failing to produce it. Mantonya v. Reilly, et al., 184 Ill. 183, 203, 56 N.E. 425; Flannery v. Flannery, 320 Ill.App. 421, 430, 51 N.E.2d 349; Princell v. Pickwick Greyhound Lines, Inc., 262 Ill.App. 298, 313.
Of the numerous issues argued on this appeal, we take the view that there are only two which we need to consider, either of which if decided adversely to the plaintiff will bar recovery and support the order setting aside the jury's verdict and allowing judgment for the defendant. The two issues are: (1) whether Annette Neidhoefer was at the time of the alleged losses a member of plaintiff's family of the same household, and (2) whether there was a waiver by the defendant of the policy provision which required the assured to file with it a sworn proof of loss.
As already noted, plaintiff was named in the policy as the assured. The property alleged to have been lost was owned by Annette Neidhoefer who at that time was the wife of the assured. The policy contained a provision which provided coverage to "Personal property owned, used, or worn by the persons in whose name this policy is issued, hereinafter called the Assured, and members of the Assured's family of the same household, while in all situations, except as hereinafter provided."
A special interrogatory was submitted to the jury as follows: "Was Annette Neidhoefer living separate and apart from the plaintiff, Charles A. Neidhoefer, and not as a member of his household at the time of the alleged losses in question?" The jury answered, "No."
Passing the confused nature of this question, there is not the slightest factual basis for a finding that Annette Neidhoefer was not at the time of the alleged losses living separate and apart from her husband. As to whether she was a member of his household at the time of the alleged losses requires an interpretation and construction of the policy provision and is, we think, as plaintiff concedes in his brief, a legal question. But even though it be considered as factual and properly submitted to the jury, we think there is no substantial evidence to support the jury's answer.
On September 12, 1946, plaintiff and his wife resided in an apartment at 534 Stratford Place, Chicago, Illinois. The evidence shows without question - in fact, it is conceded by all - that she separated from her husband on that date and took up her abode elsewhere, and that she continued in such separation during all the time relevant to the instant inquiry is conclusively shown. During such time she lived at various hotels in Chicago and in Florida. On October 3, 1946, she commenced her action in the State Court of Cook County against plaintiff for separate maintenance, alleging therein under oath that she separated from him on September 12 and that said separation had been continuous. On May 8, 1947, she filed an amended complaint for divorce realleging therein that she separated from plaintiff on September 12, 1946, and that said separation had been continuous. On May 8, 1947, she was granted a decree of divorce, which recognized that she had been continuously separated from her husband since September 12, 1946.
The alleged losses relied upon in the instant case occurred on December 9, 1946 (more than a month after she filed her separate maintenance suit) while she was residing at Canterbury Court in Chicago.*fn1 In reporting to the defendant her loss of December 9, Mrs. Neidhoefer in a written statement said: "My name is Mrs. Charles Neidhoefer. I reside in apartment 323-324 Hotel Sherry, 1725 E. 53rd Street, Chicago, Illinois. My income is from separate maintenance from my husband, Charles Neidhoefer of 534 Stratford Place, Chicago, Illinois, from whom I have been separated from since and living apart from since September 12, 1946. On December the 4 I moved into apartment 1205 of the Canterbury Court Apartments 1220 No. State St., Chicago, Illinois." In a further statement furnished the defendant on December 19, 1946, she ...