Fitzsimmons-Kreider Milling Co. v. Millers Mutual Fire Insurance

Per Curiam : This is an action in assumpsit by appellee against appellant to recover upon an insurance policy issued by appellant to appellee covering loss or damage by fire to a flour mill owned by appellee and operated by Goebel & Burr as lessees. Upon the trial of the cause in the Circuit Court of Morgan county there was a verdict and judgment against appellant for $3,232.68. Appellee had a like policy of insurance upon the same property in the Ohio Millers Fire Insurance Company, an action upon which policy resulted in a judgment against said company and an appeal from said judgment to this court, where the judgment was affirmed. Fitzsimmons-Kreider Milling Co. v. Ohio Millers Mut. Fire Ins. Co., 158 Ill. App. 174. The evidence in both cases upon the issue involving the alleged failure of appellee’s lessees to operate the mill for a period of sixty days as required by the policies was the same and what is said relative thereto in the opinion in the former case is applicable to and is adopted in this case. The third plea filed by appellant sought to set up as a defense the alleged failure of the lessees of appellee to keep a watchman on duty in the mill at all times when the same was not in operation, as provided in the application for the policy. To this plea a demurrer interposed by appellee was sustained by the court, and appellant elected to abide its plea and now assigns as error the action of the court in sustaining said demurrer. The demurrer was properly sustained because the plea avers merely the conclusions of the pleader as to the tenor and effect of the provisions of the application. It is next urged that appellant’s challenge for cause of two jurors, who were peremptorily excused by it, was improperly overruled. Appellant after exhausting its peremptory challenges completed the panel with jurors, who, for aught that appears in the record were wholly satisfactory to it. In the absence of a showing by appellant that it was required to take an objectionable juror after exhausting its peremptory chailenges, the action of the court in overruling the prior challenges for cause will not be considered. Spies v. People, 122 Ill. 1. Appellant cannot complain of the third instruction given at the instance of appellee, because the thirteenth instruction given at its request recognized the operation of the mill for other purposes than grinding wheat flour as proper within the terms of the policy. The eighteenth instruction tendered by appellant was properly refused because it was inconsistent with the thirteenth instruction given at its instance. There is no merit in appellant’s contention that a flouring mill may not be properly operated to grind other flour than wheat flour. There is no such restriction in the policy. We observe no serious impropriety in the language used by counsel for appellee in argument to the jury, and the direction by the trial court to the jury to disregard the same was most favorable to appellant. There is no reversible error in the record and the judgment will be affirmed. Affirmed.