Cassel v. Newark Ins. Co.
| Citation | 274 Wis. 25,79 N.W.2d 101 |
| Parties | Frank CASSEL et al., co-partners, d/b/a Cassel's Apparel Shop, Respondents, v. NEWARK INSURANCE CO., a corporation, et al., Appellants. |
| Decision Date | 07 November 1956 |
| Court | United States State Supreme Court of Wisconsin |
Kenneth M. Kenney, Wolfe, O'Leary & Kenney, Milwaukee, Francis J. Wilcox, Wilcox & Sullivan, Eau Claire, for appellants.
Slocumb, Bundy, Carey & Solberg, Menomonie, for respondents.
The policies here involved covered loss by hail, stating that the insurer should not be liable 'unless the building covered or containing the property covered shall first sustain an actual damage to roof or walls by the direct force of wind or hail, and then shall be liable for loss to the interior of the building, or the property covered therein as may be caused by water, rain, snow, wind or dust entering the building through the openings in the roof or walls made by direct action of wind or hail * * *.'
Plaintiffs' shop occupied the ground floor and basement of a two-story brick building in the city of Menomonie. The building was L-shaped and had a flat roof 90 feet long and 30 feet wide at the base of the L, and at the inside angle of the L was a seven-inch floor drain which tapered to six inches. The roof pitched down toward the drain at the rate of approximately one to one and a half inches per foot.
Herbert Schneck applied the roof covering in June of 1951. The covering consisted of felt tar paper laid 'double coverage,' and brushed with tar. The roofing paper was flashed up the side of the parapet walls to an average of six to seven inches above the roof and it was bonded to the wall with 'Quick-set,' an adhesive or binder, and pressed to the wall by the use of an eighty to ninety pound roller. A heavy metal counterflashing, which had been set between the courses of the brick of the wall, lapped over the tar paper flashing and protruded somewhat from the wall. The evidence is undisputed that the roofing was applied in an approved manner.
Mr. Schneck, who testified as an expert, was hired by the building owner to inspect the roof each spring and fall; the last inspection preceding the loss had been made in October of 1953. He stated that at that time he examined the flashing by running his hands underneath the metal counterflashing and found it was attached to the parapet walls and 'in A-1 shape.'
Between 8:30 p. m. on April 14, 1954 and 10:30 a. m. the next day, a precipitation of 4.8 inches was recorded by the U. S. weather observer stationed about ten blocks from the plaintiffs' store. The rain storm was accompanied by a southeast wind described as 'very hard' and 'terrific,' and at least three downfalls of hail of 'marble size.' Chris Haase, owner of the building, testified that at about 10:30 p. m. there was one to two inches of hail on the sidewalks and streets. Dr. J. E. Ray, expert witness for the plaintiffs, testified that the fall of hail was so 'terrific' that he shoveled it off the walk with a snow shovel so that he could drive out his car. Plaintiff Frank Cassel was bowling on the night of April 14, 1954 and testified that at 10:00 p. m., when he left the bowling alley, hail was piled upon the sidewalks and in the center of the street to a depth he estimated at three or four inches.
Frank Cassel arrived at the store between ten and ten-thirty that night, after Mr. Haase, and found water was falling from the ceiling over about three-fourths of the floor area. Mr. Schneck, who had been called by Mr. Haase, testified he went upon the roof and noticed standing water in the area of the deck drain approximately ten inches deep; he reached into the drain and found it filled with hail from the top of the drain to the elbow, which Ex. 21 shows to be eighteen inches from the roof level. On forcing his arm down the hail and water started moving down. In the elbow of the drain he found 'a little bit of a can' which was lodged in the elbow.
Schneck returned to the roof the next morning and examined it. He found no damage to the roof but noticed two breaches, which he called 'fish mouths,' between the wall and the paper flashing, one at a point next to the drain and the other just around the corner from it. One opening he estimated as 18-20 inches long and the other between 36 and 40 inches long. On a later visit he cut the paper where it was loose from the wall and observed that the adhesive was still sticky.
The first question is whether the evidence is sufficient to support the jury's determination that the 'direct force of hail' caused the openings in the roof, as indicated by the 'fish mouths' described.
As recited above, several witnesses testified that there was an unusually heavy fall of hail during the evening of April 14, 1954, together with a great deal of rain. The wind was 'terrific,' and in this regard it may be noted that the wind came from the southeast and the points at which the roof flashing was later found to have separated from the wall were on the south and east sides of the parapet wall. It may also be noted that the metal counterflashing was inserted higher on the wall at these points, leaving a greater area of the tar paper flashing exposed than at other places on the roof. The evidence shows that in close proximity to the separations is located a 36-inch square skylight with a smooth plastic, dome-shaped cover, which defendants argue would protect the flashing from hail. On the contrary, it could be inferred that the skylight cover added to the impact of the hail by deflecting it toward the wall.
It was the opinion of Mr. Schneck, testifying as an expert, that the 'terrific hail' jarred or knocked the flashing loose from the wall.
Plaintiffs also called Dr. J. E. Ray, professor of industrial education and drafting at Stout Institute, who had examined the roof on the occasion that Schneck cut the paper flashing at the 'fish mouths.' Dr. Ray testified:
'* * * I noticed there was adequate 'stay-tite' or 'stick-tight' between the wall and in the flashing--there was plenty material there, because you could see they were both bonded completely, but it pulled away, either by pressure or pounding or something.'
After describing in detail the portion of the roof where the openings were found and testifying as to the severity of the rain and hail storm of April 14, 1954 (he estimated that about a foot and a half of hail fell that night), Dr. Ray was asked this hypothetical question:
'Now, Doctor Ray, assuming that the roof on the Cassel building was...
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