Appeal from the Circuit Court of Kendall County; the Hon. Rex.
F. Meilinger, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
The plaintiffs, Bohnen International, Inc., and John J. Bohnen, Jr., sought recovery for the loss of certain tractors from the defendant, Liberty Mutual Insurance Company, Inc., under an insurance policy issued by the defendant (Liberty). Summary judgment was entered for Bohnen International, and against the defendant, on the issue of liability. A jury trial was conducted on the issue of damages suffered by Bohnen International as the result of the loss. A verdict in favor of Bohnen International in the amount of $36,500 was awarded. Liberty appeals.
Bohnen International was engaged in the business of selling and servicing new and used trucks in Oswego, Illinois. Pursuant to an agreement with Charles Odom and Joan Odom, the plaintiffs sold the Odoms three new tractors for a price of $106,900. As partial payment for the new trucks, the Odoms gave the plaintiffs three used tractors.
Two of the trade-in tractors, a 1973 International Harvester and a 1974 Ford, were subsequently seized by the FBI and the police on behalf of the true owners. The plaintiffs state that the two used tractors were stolen vehicles. The defendant Liberty claims that it was never proven the tractors were stolen. In its summary judgment order, the court stated the vehicles had been stolen.
The plaintiffs filed a complaint against the Odoms for breach of warranty of title to the two used tractors. A default judgment was entered against the Odoms for $33,988.59.
The plaintiffs sought recovery for the loss of the two vehicles from Liberty. The plaintiffs claimed the money was due them under the terms of an insurance policy issued by Liberty in consideration for premiums paid by the plaintiffs. The damage amount was based upon the trade allowance and the plaintiffs' investment in reconditioning the tractors.
The court granted the plaintiffs' motion for summary judgment and against Liberty on the issue of liability only. The judgment provided:
"f) In July 1976 plaintiff had, among others, three new motor vehicles covered by defendant's policy, which were sold to defendant Odom for $106,900.
g) The purchase price included three used motor vehicles received in trade and credited against the purchase price in the amount of $30,000.00 and which became motor vehicles covered by defendant's policy.
h) Plaintiff had not entrusted custody or possession of the new motor vehicles to any one prior to sale or consigned or franchized same, but rather made the sale direct to defendant Odom.
i) In fact the used motor vehicles had been stolen and by virtue thereof plaintiff lost permanent use and possession of both the new motor vehicles taken by defendant Odom and also the old motor vehicles returned to the rightful owners.
j) That such conduct constituted a theft.
k) That loss under the policy is limited to direct but may be subject to a further limitation in the case of loss and plaintiff claims additional expenses of $3,238.59 for restoration of the vehicles."
The judgment went on to find that questions of fact remained as to John J. Bohnen's agency and the amount of damages. Summary judgment for John J. Bohnen was denied.
The court denied Liberty's motion to vacate this judgment and enter summary judgment in its favor. The same judgment allowed the plaintiff to non-suit John J. Bohnen, to amend the amount of damages to $31,238.59 and to amend the month of loss from August to October 1976, and to withdraw a jury demand. A fifth amended complaint reflecting the amendments was filed.
A trial on the issue of damages resulted in a verdict in the amount of $36,500.
Liberty's motion for judgment n.o.v. and for entry of judgment not to exceed $31,724 was denied.
Liberty filed a post-trial motion which sought to vacate the prior judgment and for judgment in its favor because the loss was not covered by the automobile physical damage ...