Appeal from the Circuit Court of Scott county; the Hon. CLEM
SMITH, Judge, presiding. Reversed.
This is an appeal from a judgment of the Circuit Court of Scott County, Illinois, which judgment was in the amount of $2,585.00 in favor of plaintiff and against defendant. The case arose out of the death of swine owned by the plaintiff and insured by the defendant against certain risks. The jury returned a verdict in favor of the plaintiff in the amount of $3500.00 and judgment was entered thereon. Subsequently plaintiff filed a remittitur for $915.00 reducing the judgment to $2585.00. Defendant's post trial motion was denied and this appeal followed.
The policy issued by defendant to the plaintiff is one insuring farm personal property against certain risks. It covers livestock which by the terms of the policy is defined to include swine. The policy has the following provision in it:
"THEFT, VANDALISM AND MALICIOUS MISCHIEF AND OVERTURN CLAUSE. This insurance is extended to include direct loss by . . . vandalism and malicious mischief (as defined below) . . ."
There then follows this provision:
"The term `Vandalism and Malicious Mischief' as used herein is restricted to and includes only wilful or malicious physical injury to or destruction of the described property."
Plaintiff's complaint alleges that certain of his sows, hogs and pigs were wilfully and maliciously ingested with poison by a person or persons unknown, as a result of which they died or were ruined in health. Defendant denied this allegation and this is essentially the issue submitted to the jury.
Upon this appeal defendant makes two basic contentions, namely:
(1) there is an absolute failure of proof to establish that the loss was a "direct loss" to the livestock involved and (2) there is an absolute failure of proof to establish that the sows, hogs and pigs were wilfully and maliciously ingested with poison by a person or persons unknown.
Consideration of these two contentions necessitates an examination of the evidence.
On March 6, 1958, the plaintiff, James Lashmett, Sr., resided in Winchester, Illinois. He owned a farm 3/4 of a mile north of Winchester on a public road, and there he raised swine. He also owned and operated a feed mill on this same public road. The mill was adjacent to Winchester.
The public road from Winchester going past the farm runs north and south. A farmhouse is located 100 feet east of the public road. On March 6, 1958, one of plaintiff's sons, Dan Lashmett, resided in this farm house, together with his wife and three small children.
A 32' x 36' barn is located about 150 feet or 200 feet southwest of the farmhouse. From Dan's bedroom, on the south side of the farmhouse, he had a clear view of the barn.
In this barn plaintiff raised swine. On March 6, 1958, he had 15 sows ready to farrow, 79 three month old shoats, approximately 80 pounds each, and 49 five week old pigs, 35 to 40 pounds each. These three sizes of swine were kept in separate pens in the barn, although they could have contact, one group with the other group, by sticking their noses through the boards of the wooden pens. The floor of ...