Maryland Cas. Co. v. Finch

• Decision Date: 09 July 1906
• Docket Number: 2,375.
• Citation: 147 F. 388
• Parties: MARYLAND CASUALTY CO. v. FINCH et al.
• Court: U.S. Court of Appeals — Eighth Circuit

147 F. 388

MARYLAND CASUALTY CO. v. FINCH et al.

No. 2,375.

United States Court of Appeals, Eighth Circuit.

July 9, 1906

James D. Armstrong, for plaintiff in error.

P. J McLaughlin (W. P. Warner and R. L. Kennedy, on the brief) for defendants in error.

Before VAN DEVANTER and ADAMS, Circuit Judges, and PHILIPS, District judge.

PHILIPS District Judge.

The Maryland Casualty Company, plaintiff in error (hereinafter for convenience designated the defendant), issued its policy of insurance to the defendants in error (hereinafter for convenience designated the plaintiffs), for a term of one year beginning the 7th day of June, 1904, and ending June 7 1905, whereby the defendant insured the plaintiffs--

'Against direct loss or damage to property owned by the assured and described in the said schedule and also for loss from liability of the assured for damage to merchandise held in trust or on commission or sold delivered by being removed situate on that part of the premises occupied by the assured as described in said schedule, and caused, during the term of the insurance, by the accidental discharge or leakage of water from the automatic sprinkler system now erected in or upon the building occupied wholly or partly by the assured; * * * but the total aggregate liability of this company hereunder shall in no event exceed $25,000.'

The policy, however, was made subject to certain specified conditions. The ninth condition, which is the subject-matter of this controversy, is as follows:

'This policy does not cover loss or damage resulting from any leakage occurring at any point outside of the inner surface of the cellar floor or walls; nor resulting from the explosion, rupture, collapse or leakage of steam boilers or steam pipes; nor resulting from any interruption of business or stoppage of any work or plant; nor resulting from freezing; nor resulting from fire or violation of law; nor resulting from or caused by the willful act of the assured, nor the neglect of the assured to use all reasonable means to save and preserve the property insured hereunder; nor resulting from or caused by invasion, insurrection, riot, civil war, or commotion or military or usurped power, or by order of any civil authority; nor resulting from or caused by earthquakes or cyclones or by blasting or explosions of any kind, or by the fall or collapse of any building or buildings, or part thereof.'

On the 20th day of August, 1904, between 8 and 9 o'clock p.m. the city of St. Paul was visited by a windstorm which did injury to the plaintiff's building, breaking the pipes of the automatic sprinkler, whereby the goods in the store were flooded by the freed water, doing damage to an extent of over $25,000. For the recovery of this alleged loss suit on the policy against the defendant was brought. To this action the defendant interposed the principal defense that said injury resulted from a cyclone, and was therefore excepted from the operation of the contract of insurance. On trial to a jury the plaintiffs obtained a verdict in the sum of $26,225, for which judgment was rendered, to reverse which the defendant prosecutes this writ of error.

The controlling question presented for determination is whether or not the wind storm occasioning said loss was a cyclone within the meaning of the policy. A brief summary of the work of that storm will disclose its character. The cloud which contained its fury was first observed by Professor Weitbrecht, the head of the Mechanics Arts High School of the city of St. Paul, who was at his cottage at Lake Minnetonka about 35 miles from St. Paul. He testified that between 8 and 9 o'clock p.m. of August 20, 1904, his attention was directed the threatening clouds, which he described as a 'great large cloudy mass, balloon in shape, and coming down to a decided point at the bottom, as observed from the lake, to the southeast of the portion we were occupying. ' It moved down the lake towards St. Paul, and was apparently moving with the wind, and without evidence of revolution; 'it was an oblong balloon, decidedly oblong, with a pendant. ' He testified that it struck his house, broke a large pane of glass 36 to 40 inches square, removed the frame work of the screens, driving one with such force against a table as to punch a hole in it. It blew down the chimney of his house, and a maple tree 18 inches in diameter, taking off the whole top and carrying it 60 feet diagonally across the cottage without striking the roof. It blew in the windows and took off the roof of an adjoining cottage; turned a large barn around at an angle of 45 degrees, taking off the roof and scattering the contents. When it reached the vicinity of the city of St. paul it carried out spans of the steel and iron bridge spanning the Mississippi river, precipitating them to a considerable distance; and did great damage to trees and houses on an island in the river. It struck the city at the north bank of the river; and its general course, with some eccentric divergencies, was from southwest to northeast, covering a pathway of 300 feet or more in its sweep. Near the river the destructive force of the storm made its first impression upon the city. It blew from a railroad track and overturned box-cars. It wrecked the Empire Theater and demolished the Tivoli Concert Hall, killing some people therein. In its pathway through the city it smashed windows of various sizes and strength; blew down signs, and took off cornices from buildings, scattering their fragments in large quantities over the streets. At Third street it raised and dropped a skylight 50 feet square which covered the open court of the Pioneer Press Building; blew in its windows on the Fourth street side, creating some consternation among the inmates of the building. It unroofed the Davidson Block at the corner of the Fourth and Jackson streets. It leveled to the ground the freight depot of the Chicago, Milwaukee & St. Paul Railway. At Smith Park it broke, blew down, and uprooted a large number of trees. It carried off the top of the brick building occupied by a wagon company; the roof of which, after being blown off, dropped back on the remaining building. At another place in the vortex of its pathway it took out a section of the wall of a brick building. On the next street it wrecked into fragments a frame church building. In Lafayette Park locality chimneys were toppled over, some buildings were demolished, and trees in and about the park were broken and uprooted. It is true that the evidence tended to show that most of the trees about the park were comparatively young, and those blown down were easily restored in place by the park commissioner. On the hill further on the destruction to houses and property was marked. In places, sidewalks were lifted up on either side of the street and tumbled in mass in the center of the street, showing the eccentric motion of the wind. One sidewalk was lifted into the air, carried over a stone-wall fence, and deposited a hundred feet or so in a yard. Telephone and telegraph poles of great size and strength were blown down, broken off, and twisted in different directions. One house, as shown by a photograph in evidence, was blown diagonally around, entirely off of one corner. Some of the trees, broken or twisted off and uprooted, were of large size and apparent great strength. While it is to be conceded that the direction in which the trees fell was generally in that of the storm, yet as evidence of its concentric motion, trees standing in opposite positions fell ;with their tops together. The limbs of trees had the appearance of being twisted off.

As indisputable proof of the effect wrought by this narrowly confined windstorm, the street, park, telegraph and telephone inspectors and repairers were all out as early as the light of the next morning would admit to look after the injury done on their respective lines and beats. So piled up were some of the streets and debris, trees interlaced, with tangled telephone and telegraph poles, that at places the inspectors were unable to drive through the streets, according to their testimony. This storm was traced some 20 miles or more beyond the city, and its energy and violence were marked in the throwing down of fences, the breaking of trees, and demolition of or injury to buildings. As a circumstance indicating its alarming character, and as evidence of the impression it made upon their minds, newspaper men in their respective offices were thrown into excitement, and as soon as the storm sufficiently abated reporters went out in the night and early the next morning to observe its work of desolation; and so impressed were they with its character that all the newspapers of the city, perhaps with one exception, the next day in their issues described the city as swept by a cyclone of great violence. Conceding, the criticism of plaintiffs' counsel that newspaper reports may be given to sensational exaggeration, the facts remains that the storm was of such a character that notwithstanding what may be assumed to be their city pride to have the outside world understand that their beautiful city was immune from things that maketh afraid, they did publish the alarming impression made upon them by the storm.

Superadded to all this is the testimony and the report of Mr. Oliver, in charge of the Weather Bureau at the city of St. Paul. After an examination of the work of this storm in the city he sent in his report to the Department at Washington. In his official report he stated that a heavy rain began during the morning before, attended with thunder; that it was clear early in the forenoon but at 10 a.m. it became cloudy; at 7'45 p.m. a thunder storm began without any noticeable premonition except that the air was quite...