Beattie Bonded Wrhse. Co. v. General Acc. F. & LA Corp., Ltd.

• Decision Date: 20 July 1970
• Docket Number: Civ. A. No. 69-237.
• Citation: 315 F. Supp. 996
• Court: U.S. District Court — District of South Carolina
• Parties: BEATTIE BONDED WAREHOUSE CO., a corporation, Plaintiff, v. GENERAL ACCIDENT FIRE & LIFE ASSURANCE CORPORATION, LTD., a corporation, Defendant.

315 F. Supp. 996

BEATTIE BONDED WAREHOUSE CO., a corporation, Plaintiff, v. GENERAL ACCIDENT FIRE & LIFE ASSURANCE CORPORATION, LTD., a corporation, Defendant.

Civ. A. No. 69-237.

United States District Court, D. South Carolina, Greenville Division.

July 20, 1970.

Ernest J. Howard and Lehman A. Moseley, Jr., Greenville, S. C., for plaintiff.

Fletcher C. Mann and J. Brantley Phillips, Jr., Leatherwood, Walker, Todd & Mann, Greenville, S. C., for defendant.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

DONALD RUSSELL, District Judge.

In compliance with Rule 52(a), Rules of Civil Procedure, I find the facts specially and state my conclusions of law thereon in the above cause, as follows:

FINDINGS OF FACT

1. Plaintiff is a South Carolina corporation, with its principal place of business in Greenville, South Carolina.

2. Defendant is a corporation organized and existing under the laws of a State other than South Carolina, with its principal place of business in a State other than South Carolina, and is authorized to engage in the business of writing insurance in the State of South Carolina.

3. Plaintiff is the owner and operator of certain warehouses designated by numbers 1 to 4, inclusive, and used for storage of cotton, located on Mayberry Street in Greenville, South Carolina.

4. The plaintiff's warehouse No. 1 involved in this action is embraced in a policy of insurance issued by the defendant and including within its coverage insurance "AGAINST DIRECT LOSS BY WINDSTORM, HAIL, EXPLOSION, RIOT * * *."

5. On the night of August 28, 1968, at about 10:30 p. m., the warehouse designated as No. 1 collapsed. The plaintiff seeks recovery for such loss, claiming damages in the amount of $15,000.00.

6. This warehouse had originally been located elsewhere but in 1948 was disassembled and erected at its location at the time of the collapse. Located on an incline, it consisted of two stories or levels. About 1950 and 1951, the second floor or level of this warehouse collapsed from overloading and was repaired. Other than for this work in 1950 and 1951, no repairs had been made to the warehouse following its erection in 1948.

7. For many years the warehouse was approved by the State Warehouse Commission for the storage of cotton under the provisions of the State Warehouse System. Section 69-101 et seq., Code of South Carolina (1962). The approved storage was 1750 bales for the first level and 1100 bales for the second. On August 28, there were 1100 bales stored on the first floor and 900 bales on the second floor.

8. Over the years, dry rot in an undetermined amount had accumulated on the structural pillars of the warehouse. In addition, these pillars had a certain amount of termite infestation. They were, however, substantial pillars, about 10" × 10", and the extent of damage caused by dry rot and termites to such columns was not determined.

9. Dysart, who had been manager of the plaintiff's warehouse for about three years, testified that until the afternoon of August 28, 1968, the warehouse had not leaned any, was structurally upright and gave no indication of unsteadiness. On the other hand, he did indicate that the building had on occasions vibrated and shaken when fork-lift trucks were being used on the second-floor level. Moreover, two witnesses employed by a sprinkler company, who, in such capacity, had serviced the sprinkler system in the warehouse over the years and were very familiar with it, testified that the warehouse was "in bad shape" and that they had observed the warehouse progressively "gradually getting worse"), leaning towards the incline on which the warehouse was situated, for more than a year. One of these employees fixed the "listing" of the warehouse at "a few degrees" "maybe a year before it actually fell over." On at least two occasions prior to their visit on the afternoon of August 28, 1968, they had been called to make adjustments to the sprinkler system required by reason of the listing or settling of the warehouse. Actually, their visit on the afternoon of August 28, 1968, was for this purpose. These two witnesses were disinterested and there is no reason to discredit their testimony. Nor, for that matter, did the manager of the plaintiff dispute their testimony that they had on at least two other occasions made adjustments in the sprinkler lay-out at the warehouse to meet the new situation caused by the settling of the warehouse or that it was for the purpose of making such adjustment that the sprinkler company employees were at the warehouse on the afternoon of August 28, 1968.

Under these circumstances, the conclusion is inescapable—and I so find as a fact—that the warehouse had been listing or settling perceptively and noticeably for a considerable period of time prior to August 28, 1968.

10. Nor had the plaintiff taken any steps to correct such listing or settling or to "brace the building or to shore up the building." One of the employees of the sprinkler company testified that on the afternoon of August 28, 1968, he pointed out to the manager of the plaintiff the "leaning condition", indicating his concern about it, and that the manager inquired "who could he get to brace it up." The employee gave the manager two names of contractors who, in his opinion, could "shore up" the buildings.

11. The evidence of the plaintiff on the nature of the wind on the afternoon of August 28, which the plaintiff contends caused the warehouse's collapse, consisted of the testimony of four witnesses:

(1) The manager of the plaintiff testified that beginning between 1:00 and 2:00 o'clock and continuing until 5:30 on the afternoon of August 28, 1968, he observed "strong, gusty winds" about the warehouse and "noticed a little swaying" in the building, which he said the employees of the sprinkler company had originally "pointed out" to him when they arrived at the warehouse.

(2) A part-time employee of the plaintiff, who visited the warehouses during this same afternoon, stated it was "windy" about the warehouse. Later she described the wind as "forceful" and added that she didn't feel that it would be "comfortable" to get out of her car. She said she noted that the wind was "having a great effect on" the warehouse. Because of the wind, she did not get out of her car but talked to Mr. Dysart in her car.

(3) Another employee of the plaintiff testified that he observed "strong gusts of wind", blowing the cotton "so bad until I (he) had to quit sampling" incoming cotton which he apparently was inspecting. He added he observed the warehouse "vibrating" and "leaning".

(4) The plaintiff called another witness who had been at the warehouse on the morning of August 28, 1968, but left about 1:00 o'clock. He observed some wind blowing some cotton off the bales. This, however, was apparently before the manager of the plaintiff contended the winds reached their intensity.

None of these witnesses for the plaintiff attempted to give any estimate of the velocity of the wind during the afternoon. Other than for some turbulence of the cotton samples, they identified nothing about the warehouse that had been affected by the wind during that afternoon.

12. The defendant, in turn, offered the following testimony on the nature of the wind on the occasion in question:

(1) The defendant proffered the surface weather observations made at the Greenville-Spartanburg Airport and the Greenville Downtown Airport. The first of these installations was about 8 miles from the warehouse and the second about 3 miles. Both indicated winds of about 12 to 14 miles per hour, with gusts up to about 20 miles per hour at about 11:00 o'clock on the morning of August 28. From that time on, the records indicated the winds subsided gradually. These records thus reflect wind conditions at these installations different from those testified to by Mr. Dysart as occurring at the warehouse, for they indicate that the winds were subsiding, rather than increasing in volume, during the afternoon of August 28.

The plaintiff points out that the meteorological data showed that winds of 13, 14 and 18 miles per hour had been recorded on the days immediately preceding August 28. Indeed, it points to a date some nine days earlier when the wind velocity reached 30 miles per hour. The interesting fact about all this is that Mr. Dysart, who was at the warehouse, it would appear, on these days did not testify that the wind on such days represented "strong gusts" or threatened any harm to the warehouse. Actually, he singled out the wind of August 28 as the sole damaging agent, though, if the meteorological data may be regarded as indicative of wind velocity, there was little difference between the wind velocity on August 28 and that experienced repeatedly over the days prior thereto. Of course, it could be that the earlier wind may have been a contributing factor in the collapse of the warehouse, if such wind had been of such tumultuous character as to create a hazard. But, unfortunately for any such theory, the plaintiff had proffered no testimony that the earlier winds were of such proportions. The significant fact remains that Dysart did not regard winds which, if the meteorological data be given weight, were roughly the same as that on August 28 as of a character to elicit notice or comment from him, certainly not to be regarded as tumultuous or extraordinary.

(2) The two employees of the sprinkler company, who came to the warehouse at about 2:30 on the afternoon of August 28 and remained until 5:30 that afternoon, testified that there was "very little, if any, wind", and that there was not any form of storm whatsoever. They positively stated that they observed no wind during the afternoon that gave them any "concern". They did testify that they were concerned upon their arrival by the unsteadiness of the structure and so indicated to the manager of the plaintiff. This testimony of these outside witnesses finds support in the evidence...