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Bise's Supermarket v. Valley Forge Ins.

OPINION FILED MAY 13, 1977.

BISE'S SUPERMARKET, INC., PLAINTIFF-APPELLANT,

v.

VALLEY FORGE INSURANCE COMPANY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of St. Clair County; the Hon. JOSEPH F. CUNNINGHAM, Judge, presiding.

MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

Bise's Supermarket, Inc., plaintiff-appellant, was the owner of a grocery store in East St. Louis which caught fire and was partially burned on April 2, 1972. Plaintiff-appellant (hereinafter referred to as "Bise"), was insured by defendant-appellee Valley Forge Insurance Company (hereinafter referred to as "Valley Forge"). That insurance provided protection against fire which covered the building, its contents, inventory loss and loss due to business interruption.

Bise appeals from a judgment entered by the circuit court of St. Clair County upon a jury verdict of $42,080.05. This judgment included damages for business interruption for a period of 16 weeks. Bise argues that it is entitled to $68,729.09 which would include damages for business interruption for a period of 25 weeks. Three issues are presented by Bise for review in this appeal, to-wit: Did the trial court err in refusing plaintiff's motion for directed verdict for $68,729.09? Did the defendant engage in improper closing argument which requires a new trial be granted to the plaintiff? Should plaintiff have been awarded statutory interest on the business interruption loss for the period following defendant's submission of the proof of loss to plaintiff under section 2 of the Interest Act (Ill. Rev. Stat., ch. 74, par. 2)?

• 1 We shall consider the issues as presented by Bise. First, did the trial court err in refusing plaintiff's motion for directed verdict? In the leading case on the question, Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504, the Illinois Supreme Court reviewed thoroughly the question of when it is appropriate for the trial court to direct a verdict or grant a judgment n.o.v. The court said in conclusion at page 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."

The factual question which Bise would have the trial court take from the jury's consideration and determination is the duration of the business loss period. Was it 16 weeks or 25 weeks? There was testimony that Bise had decided not to go back into business, that Bise had given up, or that Bise had lost its lease on the building, and also that Bise could have been back in business within 16 weeks if it had so desired. As the court said in Roedl v. Lane, 41 Ill. App.3d 1062, 1065, 355 N.E.2d 354, 356:

"In making this determination [of whether or not to grant the directed verdict or judgment n.o.v.], the trial court may not substitute its judgment for that of the jury as to the credibility of witnesses nor may the court determine the preponderance of the evidence. (Prange v. Wallenburg, (1st Dist. 1975), 27 Ill. App.3d 618, 327 N.E.2d 450.)"

See also Dollison v. Chicago, Rock Island & Pacific R.R. Co., 42 Ill. App.3d 267, 355 N.E.2d 588; Genteman v. Saunders Archery Co., 42 Ill. App.3d 294, 355 N.E.2d 647; Schaecher v. Reinwein, 41 Ill. App.3d 1055, 355 N.E.2d 351.

• 2 In the present case there was a question of fact, and the trial court properly did not remove it from the jury.

• 3 The second issue raised by Bise is whether Valley Forge engaged in improper argument at closing which was so prejudicial as to require that a new trial be granted to Bise. The insurance company argued at closing that Bise could have gotten back into business sooner by purchasing inventory on credit rather than waiting for the insurance company to make its final settlement. The rule to be applied by the trial court was restated in Enloe v. Kirkwood, 120 Ill. App.2d 117, 256 N.E.2d 459, a traffic accident case involving a $150,000 verdict, the court said at page 123:

"The rule governing review of assignments of error based upon alleged improper argument to the jury is clearly stated in Belfield v. Coop, 8 Ill.2d 293, 134 N.E.2d 249. The character and scope of argument to the jury is left very largely to the trial court, and every reasonable presumption must be indulged in that the trial court has performed his duty and properly exercised the discretion vested in him. North Chicago St. R. Co. v. Cotton, 140 Ill. 486, 29 NE 899. The attitude and demeanor of counsel and the general atmosphere of the trial are observed by the trial court, and cannot be reproduced in the record on appeal. The trial court is, therefore, in a better position than a reviewing court to determine the prejudicial effect, if any, of a remark made during argument, and unless clearly an abuse of discretion, its ruling should be upheld. City of Chicago v. Chicago Title & Trust Co., 331 Ill. 322, 163 N.E. 17."

• 4 Under the circumstances of this case, we cannot say that the trial court has abused its discretion.

• 5 The final issue before the court is whether the trial court properly refused to award Bise prejudgment interest from the date the insurance company presented Bise with a proof of loss form on August 10, 1972. Bise argues that prejudgment interest should have been awarded to it in this case even though its insurance policy with Valley Forge does not provide for payment of interest. In Hamilton v. American Gage & Machine Corp., 35 Ill. App.3d 845, 342 N.E.2d 758, the court said at page 852:

"Absent an express agreement between the parties, allowance of interest depends upon statutory authority. (See Pinkstaff v. Pennsylvania R.R. Co., ...


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