Wood v. Michigan Millers Mutual Fire Insurance Co.

96 S.E.2d 28 (1957) 245 N.C. 383

C.M. WOOD
v.
MICHIGAN MILLERS MUTUAL FIRE INSURANCE COMPANY.

No. 390.

Supreme Court of North Carolina.

January 11, 1957.

Deal, Hutchins & Minor, Winston-Salem, for defendant-appellant.

Buford T. Henderson, Winston-Salem, for plaintiff-appellee.

RODMAN, Justice.

Defendant's first assignment of error is to the refusal of the court to allow its motion for nonsuit. On the prior appeal defendant asserted that its motion for nonsuit should be allowed. This Court held the evidence sufficient to take the case to the jury. The only reason now assigned for changing the conclusion then reached is the fact that the present case does not include the opinion evidence then held incompetent. It was held on the prior appeal that the testimony of plaintiff, as recited, sufficed to take the case to the jury. The opinion evidence was in no way made the basis for the ruling on the motion. It was said the credibility of the witnesses was for the jury. The conclusion then reached is the law of this case.

Defendant assigns errors of commission in the charge and omission for failure to give requested instructions. The brief in support of the asserted errors of commission is based on the contention that the court gave abstract statements of legal principles not applicable to the case, and therefore misleading to the jury.

The insurance policy was by endorsement "extended to include direct loss by Windstorm, Hail, Explosion, Riot, Riot Attending a Strike, Civil Commotion, Aircraft, Vehicles, And Smoke." With respect to these various hazards, the policy contained separate limitations. Applicable to this case were: "Provisions Applicable Only To Windstorm And Hail: This Company shall not be liable for loss caused directly or indirectly by (a) frost or cold weather, or (b) snow storm, tidal wave, high water, overflow or ice, whether driven by wind or not."

The evidence was sufficient to permit the jury to reach the conclusion that the damage to the building was the result of any of three conditions. It could find in accordance with the contentions and testimony of plaintiff that the damage to the building was caused solely and exclusively by winds of hurricane velocity and that the heavy rains occurring that day came after the loss had been sustained. It could find, as defendant contends, that the torrential rains saturated the earth and filled the ditch and openings adjacent to the foundation of the building, creating a hydrostatic pressure which the foundation was unable to withstand, and the damage was the result of high water in the ditch and pockets adjacent to the building. The jury might seek to harmonize the conflicting testimony. It could find that the foundations had only been erected some three weeks, that the mortar had not fully set, that the heavy rains had saturated the earth parched by long drought, that neither of these sufficed to cause damage to the building and under these conditions the building would withstand winds of normal velocity, but under the conditions then existing the building could not stand against the winds of the hurricane, whether the maximum velocity was 40 to 50 m. p. h., as limited by the testimony of defendant' witness, or a much higher velocity, as could be inferred from the testimony of plaintiff and his witness.

It was the duty of the court to declare the law applicable to each factual situation which the jury might accept as correct.

Defendant's brief supporting the exceptions to the charge says the instructions given by the court were prejudicial because they incorporated abstract principles which had no application to the facts. The policy provided protection against "direct loss by windstorm." The court defined windstorm. The court then told the jury that to be entitled to indemnity the loss must result from a peril which was the efficient and predominating cause and which produced the damage without any new or intervening cause sufficient of itself to produce the damage. The language used fitted the insuring portion of the policy and accords with the law as it has been declared. Miller v. Farmers Mut. Life Insurance Association, 198 N.C. 572, 152 S.E. 684. It is apparent that case was made the basis of the charge.

The judge then proceeded to declare the law applicable to the supposition that the jury would find that the rains had saturated the earth and thereby reduced the capacity of the building to withstand the windstorm. As to that, he told the jury in effect that if a cause not excluded, illustrated in this case by the rain which soaked and softened the earth, enabled the wind to destroy the building, plaintiff could, notwithstanding the contributing cause, recover; but if the cause insured against (windstorm) and an excluded cause (high water) combined to create the damage, plaintiff could not recover. The error, if it exists in the charge, is not one as to which defendant can complain. The rule applicable to policies of this character and to the factual situation presented by this case is, we think, correctly stated in Anderson v. Connecticut Fire Ins. Co., 231 Minn. 469, 43 N.W.2d 807 809: "Where an insurance policy expressly covers the risk of loss to a building from windstorm, liability for such loss is established where it is shown that the windstorm by its own unaided action was of sufficient violence to be the efficient and proximate cause of the damage or where, as the efficient and proximate cause—though not the sole cause—it brings about such a material weakening of the building that it collapses from the weight of accumulated snow, and which collapse would not have taken place had not the structure first been weakened by the wind. It is immaterial that the damage following from the efficient and proximate cause may have been indirectly and incidentally enhanced by another cause expressly excluded from coverage."

Defendant's assignments of errors of omission are the refusal of the court to give instructions as requested. These requests proceed upon the theory that if water was a contributing cause to plaintiff's loss, he could not recover. The policy does not so provide. If plaintiff's loss was caused by the windstorm, the fact that the rains may have created a condition which would permit the destruction by the windstorm would not relieve defendant from liability. The policy does not exclude from its terms rains, no matter how heavy. It is the high water or overflow which would excuse defendant. Trexler Lumber Co. v. Allemannia Fire Ins. Co., 289 Pa. 13, 136 A. 856; Pearl Assur. Co. v. Stacey Bros. Gas Const. Co., 6 Cir., 114 F.2d 702; Pennsylvania Fire Ins. Co. v. Sikes, 197 Okl. 137, 168 P.2d 1016, 166 A.L.R. 375; Gerhard v. Travelers Fire Ins. Co., 246 Wis. 625, 18 N.W.2d 336; Fidelity Phenix Fire Ins. Co. of New York v. Anderson, 81 Ind.App. 124, 130 N.E. 419.

That the court preferred its own phraseology to that suggested by defendant in formulating the issues is not error. It is not suggested that the issue submitted did not comprehend the question in controversy.

The exception and assignment of error to the question and answer: "Q. And to what extent was the wind blowing, if you have a way of describing it? A. Well, it was just blowing too hard for me to get outdoors and face it * * *" is without merit. The witness had previously testified: "The wind sure was blowing that day." There was other testimony: "The wind was blowing so terrific that it was almost impossible to stand up on the outside * * *"

Wiley Sims, a witness for defendant, in charge of the Weather Bureau at the Smith Reynolds Airport near Winston-Salem, had testified as to the amount of rain which fell that day. He testified that the Weather Bureau kept records at the airport since February 1944 and at Salem since 1895. He was then asked how the rain that day compared with the previous rains during that time. Plaintiff's objection was sustained. He would have testified: "That is the greatest amount we ever had in a 24-hour period, as far as we know." The records had not been introduced in evidence. If, as seems, defendant was referring to contents of the records, they should have been put in evidence. All of the witnesses testified to extremely heavy rain that day. The exclusion of the evidence was not error.

Finally defendant excepts for that the court declined to permit the witness Griset to testify in response to a question that a simple means of testing wind pressure would be "By sticking your hand out of the window of your car when you are driving along." But the record discloses that this very witness testified to that fact just a few moments later. We find

No error.

JOHNSON, J., not sitting.