Brown v. Pennsylvania Fire Ins. Co., Philadelphia

• Decision Date: 19 January 1954
• Docket Number: No. 28658,28658
• Citation: 263 S.W.2d 893
• Parties: BROWN v. PENNSYLVANIA FIRE INS. CO., PHILADELPHIA.
• Court: Missouri Court of Appeals

Page 893

263 S.W.2d 893

BROWN v. PENNSYLVANIA FIRE INS. CO., PHILADELPHIA.

No. 28658.

St. Louis Court of Appeals, Missouri.

Jan. 19, 1954.

Franklin E. Reagan, Adolph K. Schwartz, Sievers, Reagan & Schwartz, St. Louis, for appellant.

David M. Grant, Frank S. Bledsoe, St. Louis, for respondent.

RUDDY, Judge.

Plaintiff, respondent herein, brought suit in the Magistrate's Court of the City of St. Louis on an insurance policy to recover loss by windstorm. On appeal to the Circuit Court, the case was tried before a jury, resulting in a verdict and judgment in favor of plaintiff and against defendant, appellant herein, for $510, plus interest of $110, aggregating $620. After an unsuccessful motion for new trial defendant appealed.

It is admitted that the policy was issued by the defendant to the plaintiff and that it was in force on the date of the alleged loss, and that it was issued to the plaintiff as owner of the property at 2720 Delmar, St. Louis, Missouri. It was further admitted at the trial that proper proof of loss and demand for payment of the loss was made by the plaintiff to the defendant. By the terms of the policy it covered 'direct loss by windstorm and hail.'

The building involved was a three-story residence structure located at 2720 Delmar in St. Louis. It had a gabled roof, slanting to the north and to the south. The apex ran east and west, and the roof was covered with tar paper. The east wall of brick extended above the roof and was referred to as a 'fire wall.' This extension above the roof line increased as it approached a point where the chimney was located, and lessened as it extended to the north and south. Plaintiff first moved into the building forty-five years prior to the trial, and after living there ten years he purchased the property. He had been told when he moved there that the building was then fifty years old. During all the period of his ownership he kept the property insured. He never had any trouble with the wall prior to the day in question.

In the afternoon of October 7, 1948, plaintiff was sitting inside his home and was about to turn on his radio to listen to a broadcast of a World Series baseball game, then apparently in progress, when, as he described it, 'a big windstorm * * * come from * * * out of nowhere, and a big wind came in.' At the same time he heard a noise and ran out of the door and found that the building had been damaged. He found that the fire wall 'was broken in.' He ran back into the house and down the stairs to the first floor, where he found a woman who lived there with her small child, 'screaming and hollering.' Thereafter, he brought them upstairs. Plaintiff testified that other buildings in the neighborhood were damaged as a result of the windstorm. He reported the damage to the agent of the defendant through whom he purchased the policy. The adjuster for defendant came out and told plaintiff there was no windstorm at the time of the alleged loss and said he couldn't pay him for the loss. Plaintiff thereafter had a contractor repair the loss, which included the repair of the fire wall and chimney. The contractor found that the cross pieces on the third floor had broken and caused the floor to break down. These cross pieces had to be jacked up and the flooring repaired. Plaintiff stated that the damage to the floor was the result of the windstorm blowing down the fire wall. He stated that the falling of the wall caused the rafters holding the floor to be knocked out. The total amount paid the contractor for repairing the house was $510.

A lady neighbor of the plaintiff who lived at 2738 Delmar, which was several doors west of plaintiff's property on the same side of the street, testified that on the same day plaintiff's building was damaged a pile of bricks were 'blowed out' from her house by the 'windstorm' and plaster fell down. She further testified that only the second floor was damaged and that there was no damage to the first floor. When asked what caused the bricks to fall, she answered, 'I said it was a windstorm. It was a terrible little storm that evening.'

Another lady who lived next door east of the plaintiff, testified in plaintiff's behalf and described the occasion in these words: 'I never will forget it, like to scared me to death. * * * It came up a wind and all at once something fell on the top of my house and like to scared me to death. It blowed over on the top of my house, knocked a big hole.' When asked if she heard the wind, she replied: 'When I heard a little wind, and I looked and I looked out and couldn't see nothing but dust and all, and I run to the front door, and I run back to the back door, see what was happening. Q. Did you see dust in the front street from that wind? A. Yes; dust every which way.' She further testified that her place was damaged from the pieces of brick that were blown over on her house. When pressed for an estimate of the velocity of the wind she couldn't say how fast it was blowing. She estimated the time the bricks fell was between 2:00 and 3:00 o'clock in the afternoon.

Plaintiff's contractor testified that he rebuilt the fire wall and two flues in the chimney; that the bricks below where he was working did not seem to be in bad condition; that the mortar between the bricks seemed 'in pretty fair condition'; that he repaired the floor which had sagged about three or four inches and had to repair and strengthen the wall that supported the joists and that he replaced some of the window lights in the east wall. He further testified that in repairing the wall he used part of the old brick and some new brick; that he had two helpers in the repair work and that it took them ten or twelve days to complete the repairs. He also testified that the sum of $510 he charged for the labor and materials furnished was reasonable. In describing what he observed when he came on the job he said the majority of the bricks had fallen outside the building and that the damage was confined to the upper part of the east wall. He didn't know what caused the damage and said the wall 'seemed to have crumbled.' He said as near as he could recall the roof had not pulled away from the building very much.

A contractor testifying in behalf of defendant said that he examined the building shortly after the occurrence and that the damage was in the area of the attic on the east wall and that the wall was in very poor condition. He further testified that the wall had pulled away from the roof and that the opening was covered with some waterproof tar paper. He said it was his impression that this opening had been covered some time previous to the occurrence. He said a very small portion of the wall had fallen out and when asked his opinion as to what caused the wall to fall, he said that a deterioration of the mortar had been going on for some time and that 'any vibration of a big truck would have an effect of turning that wall over and dropping it into that gangway.' He gave it as his opinion that a great many big trucks use that street. He said that the damage could have been caused by a windstorm, but it was his opinion that it was not so caused.

The adjuster for defendant said in his opinion there was no windstorm on the day the damage occurred and said that the damage was caused by a progressive process of deterioration climaxed by some sort of disturbance, possibly a passing truck or bus. He said his opinion was the result of his examination of the brick, which he found pulpy and very soft, and of the mortar, which he found to be crumbly. His examination of the building indicated that there had been a space of approximately two inches between the roof and the brick wall that had been there for some time.

Defendant introduced in evidence a report from the United States Weather Bureau showing wind data taken from instruments exposed on the Railway Exchange Building in St. Louis. The report showed that the maximum wind velocity for a five minute period on October 7, 1948, was 26 miles per hour from the southwest beginning at 1:49 p. m., Central Standard Time; that the wind movement for the hour ending at 3:00 p. m. that day was 17 miles per hour from the same direction. A scale introduced in evidence by the defendant classified as 'moderate' a wind of 13 to 18 miles per hour and one that raises dust and loose paper and moves small branches.

The first point relied on by defendant is that the court erred in refusing to direct a verdict for the defendant, because the evidence was insufficient to show that plaintiff sustained any direct loss and damage by reason of a windstorm. In support of this contention it asserts that plaintiff can not make a submissible case by building an inference upon an inference. It further asserts that the circumstances shown were insufficient to show the existence of a windstorm and that the term 'windstorm' means more than an ordinary wind. Defendant also asserts that the courts are without authority to rewrite the insurance contract in order to cover plaintiff's claim. In further support of its first point defendant contends that a windstorm was not the proximate cause of the damage to plaintiff's building. Plaintiff has not furnished us with a brief.

This first point relied on by defendant and the contentions in support of it require a determination of whether there was sufficient evidence from which the jury could find that plaintiff's damage was caused by a 'windstorm.' In the first case in this state involving the definition of a 'windstorm' this court in Schaeffer v. Northern Assurance Co., Mo.App., 177 S.W.2d 688, loc. cit. 691, said:

'The term 'windstorm' has never been judicially defined in this state so far as we are advised. It is a simple term and is defined by Webster as 'a storm characterized by high wind with little or no precipitation.' The term as used in a policy of insurance such as that with which we are here concerned means a wind of unusual violence. It is...