Central Mut. Ins. Co. v. Royal

• Decision Date: 25 June 1959
• Docket Number: 7 Div. 416
• Citation: 72 A.L.R.2d 1283,113 So.2d 680,269 Ala. 372
• Parties: , 72 A.L.R.2d 1283 CENTRAL MUTUAL INSURANCE CO. v. E. C. ROYAL et al.
• Court: Alabama Supreme Court

Page 680

113 So.2d 680

269 Ala. 372, 72 A.L.R.2d 1283

CENTRAL MUTUAL INSURANCE CO. v. E. C. ROYAL et al.

7 Div. 416.

Supreme Court of Alabama.

June 25, 1959.

Mead & Norman and Marshall H. Fitzpatrick, Birmingham, for appellant.

Clarence Simmons, Jr., and Ollie W. Nabors, Gadsden, for appellees.

STAKELY, Justice.

This is an appeal from the judgment of the lower court on a policy of insurance issued by Central Mutual Insurance Company, a corporation (appellant), in favor of E. C. Royal and Mamie I. Royal and East Gadsden Bank, a corporation (appellees), insuring a house owned by E. C. Royal and Mamie I. Royal and mortgaged to The East Gadsden Bank, a corporation, one of the appellees.

The policy insured against loss or injury by fire and a number of other perils named in the policy. The hazard in question in this case is alleged to be 'collapse of the house or a part thereof.'

The verdict of the jury and the judgment of the court thereon was in favor of the appellees in the amount of $1,200. Motion for a new trial was overruled and this appeal followed.

The case was tried on Counts 2 and 3, which appear to claim damages to the insured dwelling resulting from a collapse of a part thereof. The pleading was in short by consent.

Reversal is sought here on a number of rulings on the pleadings, the action of the court with reference to certain charges and the action of the court in overruling the motion for new trial.

The policy was in the basis amount of $15,000 and contained in pertinent part the following provision:

'This policy insures against all direct loss to the property covered caused by: Collapse of building or any part thereof.'

E. C. Royal and his wife were residing at 305 Hardin Circle, East Gadsden, in June and September, 1956. E. C. Royal testified that they heard a racket that sounded like something had fallen and broken in the house. About two weeks later it was noticed that the walls of the house had cracked on the west end, cast end and on the north end. The inside walls of the house were also cracked. The foundation was broken so that you could, according to the witness, put your finger in it in places. The foundation was concrete poured in the ground.

A number of witnesses testified that there were cracks in the walls of the house and in the foundation of the house and it appeared that segments of the wall had sunk or dropped. The house was repaired and this suit is to cover the cost of the repair work.

There was no proof that the house had fallen down or caved in.

It is insisted by the appellant that there was no collapse of the house or any part thereof within the meaning of the policy.

There appears to be little law on the question here involved. Collapse of a building or any part thereof seems to be a clear and unambiguous statement and we find ourselves unable to agree that the proof showed a collapse of the house or any part thereof.

The plain and ordinary sense of the word collapse cannot be so altered or warped to include within its meaning a movement of a structural part of a building as is sought to be done in the case at bar. We find only one case by an appellate court in this country which seems to be analogous to the case at bar. This is the case of Nugent v. General Insurance Co. of America, 8 Cir., 253 F.2d 800.

Just as in the present case, the plaintiff in the Nugent case showed that cracks had been discovered in the walls of the insured house. These cracks extended through the entire wall, from the outside to the inside. Cracks were also found in the besement floor and there was a displacement of a half inch in the two margins of the cracked surfaces. The house moved or settled toward the northeast. In the present case the evidence showed the Royal residence had moved or settled. In other words the facts in the Nugent case appear to be almost identical with the case at bar.

The Circuit Court of Appeals in the Nugent case upheld the findings of the District Court for the Eastern District of Missouri that the policy provision exactly similar to the provision involved in the instant case did not cover damage caused by such movement or sinking of the building footings and that such settling or sinking of the footings did not constitute a collapse of part of the building.

There seems to be no doubt about the meaning of the word 'collapse'. The plaintiff in the case of Skelly v. Fidelity & Casualty Co. of New York, 313 Pa. 202, 169 A. 78, contended that the word was ambiguous and so should be construed to grant coverage to the insured in a doubtful case. In that case the life insurance policy sued on contained a double liability clause should the insured sustain death 'in consequence of the collapse of the outer walls of a building while the assured is therein.' A railroad car got out of control and ran through the walls of the building in which the insured was located, causing the insured to be struck by portions of the wall and killed. In disposing of the plaintiff's contention that this unfortunate incident fell within the coverage of the policy, the court said:

'The argument of the appellant proceeds upon the idea that the word 'collapse' as used in the policy is doubtful in meaning and capable of two interpretations. Such, however, is not the fact....