Aetna Casualty & Surety Co. v. Yates, No. 21792.

CourtU.S. Court of Appeals — Fifth Circuit
Writing for the CourtTUTTLE, , and BROWN and FRIENDLY, Circuit
Citation344 F.2d 939
PartiesThe AETNA CASUALTY AND SURETY COMPANY, Appellant, v. Harold C. YATES and Eleanor Catherine Yates, Appellees.
Decision Date30 April 1965
Docket NumberNo. 21792.

344 F.2d 939 (1965)

The AETNA CASUALTY AND SURETY COMPANY, Appellant,
v.
Harold C. YATES and Eleanor Catherine Yates, Appellees.

No. 21792.

United States Court of Appeals Fifth Circuit.

April 30, 1965.


344 F.2d 940

George Chase, Waco, Tex., Naman, Howell, Smith & Chase, Waco, Tex., for appellant.

Frank B. McGregor, Jack Woods, Waco, Tex., for appellees.

Before TUTTLE, Chief Judge, and BROWN and FRIENDLY,* Circuit Judges.

FRIENDLY, Circuit Judge:

Mr. and Mrs. Yates, citizens of Texas, brought this action in a Texas court against The Aetna Casualty and Surety Co., a Connecticut corporation, to recover for damage to their home amounting to $15,900, under a Homeowners All Risk Form of property insurance issued by Aetna. The latter removed to the District Court for the Western District of Texas. The issues of coverage and of amount of damage were tried to a jury which found for Aetna on the former issue but, as instructed by the judge, also reported as to the cost of placing the house in its undamaged condition, which they determined to be $7,000. Holding that Aetna was liable as a matter of law, the court entered judgment for the plaintiffs for $7,000, plus $800 which was stipulated to be their increased living expenses during the repair of their home.

The description of the policy as "All Risk" is rather a misnomer since it contains fourteen lettered exclusions, many of these covering a considerable number of separate items. The lettered exclusions are followed by exclusions from the exclusions. Decision requires a threading of this maze.

There is little dispute as to the facts: In June, 1963, the plaintiffs discovered that the joists, sills and subflooring of their home were almost completely rotted away. The cause, as the evidence of both parties showed, was that the "crawl space" under the house was inadequately supplied with vents. Contact between air trapped in the crawl space and the subfloors and sills, which had been chilled by air conditioning, produced condensation of moisture and consequent rotting.

When plaintiffs turned to their All Risk policy, they found this disheartening exclusion:

"i. Loss caused by inherent vice, wear and tear, deterioration; rust,
344 F.2d 941
rot, mould or other fungi; dampness of atmosphere, extremes of temperature; contamination; vermin, termites, moths or other insects."

Plaintiffs' loss could be said to be "caused" by the defective construction of the house, arguably an "inherent vice"; it was a...

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49 practice notes
  • City of Burlington v. Hartford Steam Boiler, No. 1:00-CV-170.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • March 6, 2002
    ...that label is "a misnomer" to the extent such policies typically contain several exclusions. Aetna Cas. & Sur. Co. v. Yates, 344 F.2d 939, 940 (5th Cir.1965) (Friendly, J., sitting by designation); see Standard Structural Steel Co. v. Bethlehem Steel Corp., 597 F.Supp. 164, 19......
  • Harris v. Ciccone, No. 19456.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 24, 1969
    ...even at the trial itself, if not raised in the military proceeding, may not be considered on federal habeas. Palomera v. Taylor, supra, 344 F.2d at 939; McKinney v. Warden, 273 F.2d 643, 644 (10 Cir. 1959), cert. denied, 363 U.S. 816, 80 S.Ct. 1253, 4 L.Ed.2d 7. This court heretofore has ve......
  • Blaine Const. Corp. v. Insurance Co. of North America, Nos. 97-5579
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 12, 1999
    ...person could read the clause as referring just to the weather is Judge Friendly's opinion in Aetna Casualty and Surety Co. v. Yates, 344 F.2d 939 (5th Cir.1965). But the exclusionary clause at issue in Yates, and the facts to which the court applied that clause, differ significantly from th......
  • Yale University v. Cigna Ins. Co., No. Civ.A. 3:97 CV 2341(SRU).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • July 16, 2002
    ...of Acme Galvanizing Co. v. Fireman's Fund Ins. Co., 221 Cal.App.3d 170, 270 Cal.Rptr. 405 (1990), and Aetna Cas. & Sur. Co. v. Yates, 344 F.2d 939 (5th Cir.1965), both of which were relied upon by the court in Narob Dev. Corp., the sole case cited by the Vermont Electric court); but see......
  • Request a trial to view additional results
49 cases
  • City of Burlington v. Hartford Steam Boiler, No. 1:00-CV-170.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • March 6, 2002
    ...that label is "a misnomer" to the extent such policies typically contain several exclusions. Aetna Cas. & Sur. Co. v. Yates, 344 F.2d 939, 940 (5th Cir.1965) (Friendly, J., sitting by designation); see Standard Structural Steel Co. v. Bethlehem Steel Corp., 597 F.Supp. 164, 19......
  • Harris v. Ciccone, No. 19456.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 24, 1969
    ...even at the trial itself, if not raised in the military proceeding, may not be considered on federal habeas. Palomera v. Taylor, supra, 344 F.2d at 939; McKinney v. Warden, 273 F.2d 643, 644 (10 Cir. 1959), cert. denied, 363 U.S. 816, 80 S.Ct. 1253, 4 L.Ed.2d 7. This court heretofore has ve......
  • Blaine Const. Corp. v. Insurance Co. of North America, Nos. 97-5579
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 12, 1999
    ...person could read the clause as referring just to the weather is Judge Friendly's opinion in Aetna Casualty and Surety Co. v. Yates, 344 F.2d 939 (5th Cir.1965). But the exclusionary clause at issue in Yates, and the facts to which the court applied that clause, differ significantly from th......
  • Yale University v. Cigna Ins. Co., No. Civ.A. 3:97 CV 2341(SRU).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • July 16, 2002
    ...of Acme Galvanizing Co. v. Fireman's Fund Ins. Co., 221 Cal.App.3d 170, 270 Cal.Rptr. 405 (1990), and Aetna Cas. & Sur. Co. v. Yates, 344 F.2d 939 (5th Cir.1965), both of which were relied upon by the court in Narob Dev. Corp., the sole case cited by the Vermont Electric court); but see......
  • Request a trial to view additional results

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