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Drovers Nat'l Bk. v. Great Southwest Fire





APPEAL from the Circuit Court of Cook County; the Hon. ROBERT J. SULSKI, Judge, presiding.


Rehearing denied January 23, 1978.

This is an appeal by the defendant, Great Southwest Fire Insurance Company, from an order denying its post-trial motion for a new trial or judgment n.o.v. The essential facts of the plaintiff's case were agreed and stipulated to by the parties. Plaintiff was on and prior to December 18, 1974, the holder of legal title to a certain one-story frame residence located on South Halsted Street in the City of Chicago. The beneficial owner of the property was the Gardener Paradise Baptist Church.

Defendant insurance company had issued its fire insurance policy to the plaintiff, and a fire occurred on December 18, 1974, while the policy was in full force and effect. The fire completely destroyed the insured's premises, which destruction exceeded the limits of the policy of insurance.

At the time the trial commenced, the sole issue presented to the court was whether or not the premises were vacant or unoccupied at the time of the fire and for a period of 60 days prior thereto. It was further stipulated that the policy of insurance contained an exclusionary clause which precluded coverage if the premises were vacant or unoccupied for a period of 60 days or more prior to the fire. The plaintiff introduced the insurance policy, which was received into evidence, the pertinent clause of which provided as follows:

"* * * this company shall not be liable for loss occurring * * * (b) while a described building whether intended for occupancy by owner or tenant, is vacant or unoccupied beyond a period of sixty consecutive days;"

• 1 In that the issue presented was in the nature of an affirmative defense, the defendant conceded that it had the burden of proof by a preponderance of the evidence. Defendant's first witness, Albert Wolanski, a supervisor of Peoples Gas, Light and Coke Company, testified that the services had been instituted on the premises in 1972 and were discontinued at the request of the customer as of October 1, 1974, and that no gas was provided for these premises subsequent thereto.

Daisy Barefield was also called as defendant's witness and testified that she resided next door to the premises in question since December 1969, and that she believed the premises to be vacant for a period of approximately one year before the fire. Commonwealth Edison records were introduced to show that no service was rendered after September 30, 1974. It was stipulated that City of Chicago Water Department records, if produced, would have shown that no water was provided for these premises after October 1, 1974, that the main water supply was shut off as of November 1, 1974, and that no water went through the water meter after November 1, 1974.

Plaintiff, in response to the affirmative matters submitted by the defendant, produced and submitted the record of a forcible detainer action that was filed July 16, 1974, wherein on August 2, 1974, the occupants of the premises were given an additional 60 days to vacate. Reverend James Lewis was called as a witness for the plaintiff. He testified that he was the pastor of the beneficial owner of the premises, the Gardener Paradise Baptist Church, and that he had personally been on the premises on or about October 5 or 7, at which time he talked to an older woman who said she was going to move out. He talked to the same woman on the premises late in November, before Thanksgiving, and she said they would be moving out by the first of December. He also testified that he went back at night near the end of November and "They were using seven-day candles — seven-day candle lights. They had seven of them sitting around."

After both sides had rested, and immediately prior to the trial court's announcing its finding, the trial court stated as follows:

"The question very simply is to the lack of services being rendered after these particular dates, either the 1st of October or the 30th of September. They themselves raise the irrebuttable presumption — I guess you call it — that no one was occupying the premises."

The court then discussed the testimony of Reverend Lewis, identifying him as a "party in interest to a certain extent," and concluded by proceeding to recount a prior personal experience as follows:

"I know of my own knowledge that it is possible for people to have currents of electricity of their premises under circumstances which is unbeknown to the Edison Company. Counsel just suggested that it's possible that if someone were knowledgeable, he could turn the water back on after the City may have turned it off.

I can tell you the one experience I had back two years ago, and I'm not saying it's applicable here; but I was asked by a clergyman one day to visit some very poor people of his particular parish. He asked me if perhaps I can help the father ...

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