Appeal from the Circuit Court of Carroll County, Fifteenth
Judicial Circuit; the Hon. HELEN M. RUTKOWSKI, Judge, presiding.
PRESIDING JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT.
In April, 1964, the defendant insurance company sold a policy of insurance to the plaintiffs (which reference herein shall be to Harvey L. Downing only), insuring, among other things, a corncrib and elevator in the amount of $7,000 against direct loss and damage by windstorm, cyclone, tornado and hail. The crib and elevator were constructed by the plaintiff and consisted of a two-story wooden building placed on a concrete foundation.
Plaintiff testified that he leased certain bins on the upper floor of the crib and that 2,500 to 3,000 bushels of soybeans were placed there by the lessee; that the soybeans weighed from 75 to 90 tons; that on the night of January 24, 1967, there was a tornado in the vicinity of his property; that the following morning he went to the crib and discovered that the door would not shut because the building had been jarred out of plumb; that the studs along the inside of the walls were five inches out of plumb at the top; that the cupola on top of the building was twisted and that there was a hole in the roof. He also testified that he concluded he would have to put the building back in shape before using it the following fall; that he did not notify his insurance company and that he planned to have his son help him jack up the building and straighten it out.
Thereafter, for a period of twenty days, plaintiff did not notify his insurance company and took no action to jack up the building, straighten the studs, or remove any of the soybeans, despite the fact that the soybeans could have been removed in a period of several hours. On the evening of February 14, 1967, the corncrib collapsed. The next day the plaintiff called his insurance man and reported the loss.
The defendant declined to pay for the entire damage and this action followed. The case was heard before a jury and the undisputed, and only, evidence as to damage was that the plaintiff's loss was $7,342. The jury rendered a verdict in favor of the plaintiff in the amount of $3,500 and he then made what he called a "motion for additure." That motion was allowed and the trial judge increased the damages to $7,000, entering judgment for that amount. The defendant filed a motion for a judgment notwithstanding the verdict but the motion was denied.
The issues raised on this appeal fall substantially into two categories. The first issue is whether or not the plaintiff breached the insurance contract, and the second issue is whether the trial court erred in granting the so-called "motion for additure." In our view the plaintiff did breach the insurance contract and the case should be reversed. Therefore, we do not reach the second issue.
The insurance policy in question provided, among other things: "Requirements in case loss occurs: The insured shall give immediate written notice to this Company of any loss, protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in the best possible order. . . ." "Perils not included: This Company shall not be liable for loss by fire or other perils insured against in this policy, caused, directly or indirectly, by . . . (i) neglect of the insured to use all reasonable means to save and preserve the property at and after loss, . . . ." "Conditions suspending or restricting insurance: Unless otherwise provided in writing added hereto this Company shall not be liable for loss occurring (a) while the hazard is increased by any means within the control or knowledge of the insured, . . . ." and ". . . No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with. . . ."
It is to be seen from the first paragraph quoted above that when a loss occurred the plaintiff had four duties. First, to give immediate written notice to the company; second, to protect the property from further damage; third, to separate the damaged and undamaged property; and fourth, to put the property in the best possible order.
The plaintiff did not comply with any of these duties. It is stipulated that he did not notify the company for a period of twenty days and, indeed, he only notified them after a further and more substantial loss had occurred. He did not protect the property from further damage. He did not remove any of the soybeans from the damaged crib so that, in fact, he did not separate the damaged from the undamaged property and he did not put anything in the best possible order.
We are faced with the fact that a jury heard all of the evidence and concluded that the plaintiff had been faithful to his contractual duties. The only evidence as to the element of damage was in the amount of $7,342, yet the jury verdict was for $3,500. There is really no basis for such a verdict other than the fact that the jury compromised liability and damage. The issue presented to this Court was well stated by the Supreme Court in the case of Pedrick v. Peoria & Eastern R. Co., 37 Ill.2d 494, 229 N.E.2d 504 (1967), when the Court said at pp 498-499:
"In our judgment the controlling issue herein is the troublesome, though familiar, question as to the circumstances under which the trial judge may determine that the proof presents no factual question for the jury's consideration and that a verdict should be directed or judgment non obstante veredicto entered. While there is no unanimity as to the governing principles, it seems reasonably well settled that the same standards shall be applied in either case; and such is the law of this State."
The Court concluded, at p 510:
"In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand."
We are naturally reluctant to interfere with the verdict of a jury and the decision of a trial court upholding that verdict. Still, when applying the foregoing rule to the evidence in this case, the ...