
    44874.
    UNITED FIRE INSURANCE COMPANY v. PAYNE.
    Argued November 3, 1969
    Decided January 8, 1970.
    
      Matthews, Maddox, Walton & Smith, James D. Maddox, for appellant.
    
      Murphy & Murphy, Jack F. Witcher, for appellee.
   Bell, Chief Judge.

Plaintiff brought this action to recover for a fire loss on a house owned by him allegedly covered under the terms of a fire insurance policy. The loss occurred on January 19, 1968. The policy excluded coverage if the insured building was vacant or unoccupied beyond a period of sixty consecutive days. Defendant appeals from the denial of its motion for summary judgment. Held:

Plaintiff testified at his deposition that the premises were occupied during November and December, 1967 and part of January, 1968, by one Jimmy Nichols. Defendant submitted the affidavit of Jimmy Nichols which stated that he did not occupy the premises until several months after the fire. This evidence shows that a genuine issue of material fact remains for jury resolution. The trial court did not err in denying defendant insurer’s motion for summary judgment.

Judgment affirmed.

Eberhardt and Deen, JJ., concur.  