Werner's Furniture, Inc. v. Commercial Union Insurance (39 Ill. App. 3d 59, 1976)

Mr. PRESIDING JUSTICE GOLDBERG

delivered the opinion of the court:

Werner’s Furniture, Inc. (plaintiff) brought action against six insurance companies upon their policies seeking an accounting to determine plaintiffs loss and damage due to a fire on plaintiffs business premises. Plaintiff sought recovery for damage to the contents of the store and the signs on the building, and also for business interruption. A jury found in favor of plaintiff in the total amount of $11,016. Plaintiff appeals and defendant cross-appeals.

In this court, plaintiff urges that the damages awarded are grossly inadequate so that plaintiff should be awarded a new trial on the issue of damages only; the trial court should have instructed the jury to disregard defenses concerning alleged arson by plaintiff and the filing of fraudulent proofs of loss; the trial court should have directed a verdict in favor of plaintiff and then directed the jury to assess damages and the trial court erred in refusing an instruction tendered by plaintiff regarding proof of fraud in connection with the proofs of loss. Defendants contend that plaintiffs evidence of damage was not worthy of belief and that the verdict as rendered was within the prerogative of the jury. On the cross-appeal, defendants urge that the trial court should have directed a verdict for defendants on the theory that the fire commenced as a result of arson. The issues before us fall readily into a logical subdivision. We will consider first the liability of defendants upon their policies of insurance. We will then concern ourselves with the award of damages.

I.

In their answer to plaintiff s complaint, defendants alleged that plaintiff furnished them with sworn proofs of loss which were false and fraudulent in that these documents set forth under oath that the loss did not originate by any act or design of plaintiff; whereas plaintiff, by its president, knew that the fire was of incendiary origin. The answer further alleged that plaintiff, by its president, had wilfully and maliciously set fire to the premises and caused the loss. Plaintiff denied these allegations in its reply. As shown, the jury decided these issues in favor of plaintiff. The court denied a motion by defendants to direct a verdict in their favor upon the theory of arson and denied defendants’ motions for judgment notwithstanding the verdict.

Plaintiff was engaged in the retail furniture business in Chicago. It operated the store here involved at 2234 West 95th Street which sold contemporary furniture; another store farther east on 95th Street for early American furniture and a warehouse at another location.

The evidence concerning the defense of arson shows that Nate Shayne, a salesman who had worked for plaintiff since 1963, testified that he had been at work on the day of the fire, Sunday, March 30, 1969. He stated that he had opened the store located at 2234 West 95th Street, about noon and left around 5:30 P.M. in the company of Harold Pekoe, president and principal shareholder in plaintiff, and two customers. However, in a statement taken by plaintiff s investigator, Shayne had stated that he had left the store close to 6 P.M.

Harold Pekoe was in Hot Springs during the week prior to the fire. He returned to the store on that day at 2 o’clock or 3 o’clock in the afternoon. Everything looked normal. No flammables were evident. He left around 5:30 or from 5 to 5:30, together with Nate Shayne and two customers. In describing these customers, Shayne had referred to certain store invoices. Only Pekoe and Nate Shayne had keys to the store and the front and back doors were both securely locked when they left. Pekoe further testified that he was called to the store on the evening of the fire and arrived there about 9 P.M. The fire had not yet been put out. He hired public adjusters to handle his insurance claim. The proofs of loss were prepared in plaintiffs behalf by plaintiff’s auditor and by the auditor for the adjuster.

The two customers who had been at the store on the date of the fire were subpoenaed by defendants. They testified that they had left the store around 5 P.M. Mrs. George Mayer stated that she and her husband, unaccompanied, had left the store together. The door was locked when they tried to leave. She did not see anyone leave the store behind them, but did not pay attention. Mr. George Mayer testified that the salesman had shut the door behind him and his wife. No one walked out of the store with them.

Plaintiff also called Melanie Irwin. She had been employed by plaintiff as a secretary and saleswoman from 1960 to the time of the fire. She testified that she had gone to work on Sunday, the day of the fire, and that she must have stayed until between 3 o’clock and 5 o’clock that afternoon. However, she also testified that she stayed that day until closing time an