Stein v. Girard Insurance Co. of Philadelphia, Pa.
| Decision Date | 24 October 1958 |
| Docket Number | No. 12350.,12350. |
| Citation | 259 F.2d 764 |
| Parties | Archie STEIN, d/b/a Archie's Grill, Plaintiff-Appellee, v. GIRARD INSURANCE COMPANY OF PHILADELPHIA, PA., and Citizens Insurance Company, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
A. M. Anderson, Chicago, Ill., C. F. Snerly, Chicago, Ill., for appellant.
Maxfield Weisbrod, Chicago, Ill., for appellee.
Before FINNEGAN, SCHNACKENBERG and PARKINSON, Circuit Judges.
Shortly after midnight of Saturday, December 11, 1954, after having been closed for the weekend at 3:00 o'clock that afternoon, plaintiff's restaurant in the lobby of the Railway Exchange Building in Chicago was damaged by a fire of incendiary origin.
At the time of the fire plaintiff had two fire and extended coverage policies issued by the defendant companies under which the plaintiff made claim for the loss. The defendants denied liability and plaintiff sued. The defendants asserted by their answer, inter alia, the defense that the fire was caused by the plaintiff or through his procurement for the fraudulent purpose of collecting from the defendants on the insurance policies in suit.
Trial was to a jury. At the conclusion of all the evidence the District Court, on motion of the plaintiff, struck from the answer the willful destruction defense and withdrew that issue from the jury by giving the following instruction:
"You are instructed that the question as to the cause and origin of the fire in question is removed from your consideration, so that the jury in considering this cause shall give no consideration whatsoever as to the cause and manner or origin of the fire in question."
The jury returned a verdict for the plaintiff in the sum of $9,859.83. The District Court augmented the verdict with interest in the sum of $1,405.13 and entered judgment for $11,264.96. This appeal followed.
The facts established by the uncontradicted evidence are that the plaintiff owned and operated the restaurant, the contents of which were insured by the defendants, under the name of Archie's Grill. The front entrance of the restaurant was on Jackson Boulevard and there was a rear door which opened into a corridor leading to the main lobby of the Railway Exchange Building.
There were only two keys to the front door. The plaintiff had one and Edward Slapa, the cook, had the other. At 3:00 o'clock in the afternoon of December 11, 1954, Slapa closed the restaurant for the weekend after locking both doors. There was no one in the restaurant at that time.
Between five and six o'clock that afternoon James Fee came on duty as a watchman for the Railway Exchange Building and found the restaurant closed and locked. At 7:30 P.M. he locked the front door of the Railway Exchange Building on Jackson Boulevard. The rear loading platform had been previously locked. Thus the only entrance to the building after 7:30 P.M. that day was the Michigan Avenue entrance and no one could enter the building and have access to the rear door of plaintiff's restaurant without being seen by the watchman on duty in the lobby. Fee was on duty until midnight when another watchman, William C. Bok, relieved him.
Fee left the lobby to go home about 12:15 A.M. He proceeded to check all the outside doors of the business establishments in the building and as he approached the front door of plaintiff's restaurant he noticed a key in the lock. There were no lights on in the restaurant. He then saw a man open the front door, from the inside of the...
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Kisting v. Westchester Fire Insurance Company, 67-C-27.
...to the arson defense. See McIntosh v. Eagle Fire Company of New York, 325 F.2d 99 (8th Cir. 1963); Stein v. Girard Insurance Company of Philadelphia, 259 F.2d 764 (7th Cir. 1958). I conclude that the questions relating to Kisting's 1965 income tax return were material and that the questions......
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