{
  "id": 5279962,
  "name": "Louis Di Battista, Plaintiff-Appellee, v. Centennial Insurance Company, a Corporation, and the Insurance Company of the State of Pennsylvania, a Corporation, Defendants-Appellants",
  "name_abbreviation": "Di Battista v. Centennial Insurance",
  "decision_date": "1964-09-28",
  "docket_number": "Gen. No. 10,536",
  "first_page": "84",
  "last_page": "87",
  "citations": [
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    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
    "name": "Ill."
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      "cite": "3 Ill App2d 92",
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    {
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      "opinion_index": 0
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    {
      "cite": "29 Ill App2d 118",
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  "last_updated": "2023-07-14T20:22:06.292848+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "CROW, P. J. and SPIVEY, J., concur."
    ],
    "parties": [
      "Louis Di Battista, Plaintiff-Appellee, v. Centennial Insurance Company, a Corporation, and the Insurance Company of the State of Pennsylvania, a Corporation, Defendants-Appellants."
    ],
    "opinions": [
      {
        "text": "SMITH, J.\nA question of procedure is involved. Defendants, both fire insurance companies, appeal from an order granting plaintiff\u2019s motion for summary judgment. The pleadings are a thicket. They are: (1) Plaintiff\u2019s complaint alleging coverage and loss; (2) plaintiff\u2019s interrogatories; (3) defendants\u2019 objections to same; (4) plaintiff\u2019s amended interrogatories; (5) defendants\u2019 objections to same; (6) defendants\u2019 interrogatories; (7) verified answer; (8) plaintiff\u2019s motion to strike same; (9) plaintiff\u2019s answer to interrogatories; (10) defendants\u2019 motion to strike certain answers; (11) plaintiff\u2019s additional answers to interrogatories; (12) plaintiff\u2019s motion for summary judgment; (13) defendants\u2019 verified amended answer containing denials and special defenses; (14) plaintiff\u2019s motion to strike same; (15) defendants\u2019 motion to strike motion for summary judgment; (16) defendants\u2019 motion to vacate judgment; and (17) plaintiff\u2019s objections to same. As we have noted, the motion for summary judgment was allowed. Defendants\u2019 motion to vacate was denied. They claim error as to both rulings and to an order striking some special defenses.\nOddly enough, in this thicket, we find no reply to the special defenses left extant. Hence, such as are left stand admitted for purposes of the motion for summary judgment. Such motion poses this question: Are there any triable issues? Since the end of pleading is to frame triable issues, we look for answer to the viable pleadings. If there are no triable issues, no relevant issues of fact to be decided, the motion is good.\nWe have said there was no reply to the special defenses left extant, meaning they had weathered a motion to strike. Their survival minus any reply, willynilly, framed triable issues. Summary judgment and triable issues are incompatible. Triable issues should he tried and vice-versa. Summary judgment therefore should not have been granted.\nSo favored is the avenue of trial that affidavits in support of the motion are strictly construed, while those in opposition, it is said, receive a liberal construction. Midwest Grocery Co. v. Danno, 29 Ill App2d 118, 172 NE2d 648. This is not so much to say that summary disposition is in disfavor, rather, we are chary of denying a litigant his day in court. Hence. the benefit of the doubt goes to the party resisting the motion. After all, a mistaken denial denies neither his day, though it is doubtless an imposition on the movant. That as it may be, this imposition is of nothing compared with the consequences resulting from a mistaken allowance for then the case is over, with only an appeal available to show that there were triable issues. An appeal, as we know, is not always possible, and even if we assume, as we must, that an appeal would in the course of nature set things aright, that avenue is laborious and expensive, which does not, of course, detract from our assumption.\nThe right to summary judgment must he clear beyond question. Solone v. Reck, 32 Ill App2d 308, 177 NE2d 879. Sampson Co. v. Mandel Bros., Inc., 3 Ill App2d 92, 120 NE2d 571, sums the situation up nicely: \u201cPlaintiff\u2019s right to judgment should he free from doubt. If the defense is arguable, apparent, made in good faith it should be submitted to the jury. The court is bound to accept statements of fact as true when alleged in defendant\u2019s affidavits. The whole record must be considered.\u201d\nWe turn briefly to the pleadings. Defendants\u2019 amended answer stated that plaintiff had breached the \u201cConcealment\u201d and \u201cLoss\u201d conditions of the policy. As we have seen, there was no reply to these defenses, nor were they otherwise traversed, hence they stand admitted. A breach of these conditions (we will not belabor the point) conld defeat recovery. Hence there were genuine issues of fact to be tried.\nThree affirmative defenses were stricken and we are asked to resurrect them. They look to a breach of the \u201cConcealment\u201d condition. One has to do with an inflated figure used in the proof of loss and the others with misrepresentations that the building burned was both a club and a restaurant, and that plaintiff was sole and unconditional owner of the real estate. These three misrepresentations, it is alleged, were made with intent to cheat and defraud.\nThe defense as to ownership is not argued, hence waived. Whether the building was used solely as a restaurant, or, as a club and restaurant, involves a question of coverage and could constitute a defense if made as asserted. So too does an inflated claim if done for the purposes alleged. Ledford v. Hartford Fire Ins. Co., 161 Ill App 233, Tenore v. American and Foreign Ins. Co., 256 F2d 791 (7th Cir). Accordingly, these two special defenses were improperly stricken.\nIn view of the fact that the judgment must be vacated we need not consider the propriety of the court\u2019s refusal to consider defendants\u2019 motion to vacate. Since this matter must proceed to trial, plaintiff should be given leave to reply. The judgment below is reversed and the cause remanded with directions not inconsistent with this opinion.\nReversed and remanded with directions.\nCROW, P. J. and SPIVEY, J., concur.",
        "type": "majority",
        "author": "SMITH, J."
      }
    ],
    "attorneys": [
      "Clausen, Hirsh, Miller & Gorman, of Chicago, and Hayes & Moore, of Champaign, for appellants.",
      "Summers, Watson and Kimpel, of Champaign, for appellee."
    ],
    "corrections": "",
    "head_matter": "Louis Di Battista, Plaintiff-Appellee, v. Centennial Insurance Company, a Corporation, and the Insurance Company of the State of Pennsylvania, a Corporation, Defendants-Appellants.\nGen. No. 10,536.\nFourth District.\nSeptember 28, 1964.\nClausen, Hirsh, Miller & Gorman, of Chicago, and Hayes & Moore, of Champaign, for appellants.\nSummers, Watson and Kimpel, of Champaign, for appellee."
  },
  "file_name": "0084-01",
  "first_page_order": 96,
  "last_page_order": 99
}