Clouse v. St. Paul Fire & Marine Ins. Co.
| Decision Date | 19 January 1950 |
| Docket Number | No. 32698,32698 |
| Citation | 40 N.W.2d 820,152 Neb. 230 |
| Parties | , 15 A.L.R.2d 1008 CLOUSE v. ST. PAUL FIRE & MARINE INS. CO. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. In a jury case where different minds may draw different conclusions or inferences from the adduced evidence, or if there is a conflict in the evidence, the matter at issue must be submitted to the jury, but where the evidence is undisputed, or but one reasonable inference or conclusion can be drawn from the evidence, the question is of law for the court.
2. In testing the sufficiency of evidence to support a verdict it must be considered in the light most favorable to the successful party, that is, every controverted fact must be resolved in his favor and he should have the benefit of every inference that can reasonably be deduced therefrom.
3. A policy against loss or damage caused by lightning to the property insured usually covers all known effects of electricity coming under the general head of lightning, and includes all loss or damage which results as a direct and natural consequence of the lightning, notwithstanding other incidental agencies may be instrumental in adding to the loss or damage.
4. The word 'lightning,' in its ordinary and popular sense, applies to any sudden and violent discharge of electricity occurring in the course of nature, between positively and negatively electrified bodies, usually developing in its course the phenomena of light, heat, and disruptive force.
5. Under the terms of these policies appellant was only liable for 'direct loss' caused by lightning. 'Direct,' as so used, means 'immediate' or 'proximate,' as distinguished from 'remote' or 'incidental.'
6. In determining the cause of a loss for the purpose of fixing insurance liability, when evidence of concurring causes of the damage appears, the proximate cause to which the loss is to be attributed is the dominant, the efficient one that sets the other causes in operation; and causes which are incidental are not proximate, though they may be nearer in time and place to the loss.
7. When the terms of an insurance policy which contemplate that the damage or loss to a building therein insured against lightning is the difference in the actual cash value of the building as it stood prior to being damaged as compared with the actual cash value thereof after being damaged thereby are subject to a provision that the loss or damage shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind or quality, such provision constitutes merely a limitation upon the amount of the recovery and is not a substantive measure of damages which the insured can invoke.
8. Where an instruction, though erroneous, is not prejudicially so and cannot by any course of logical reasoning be deemed to have resulted in disadvantage to the complaining party, it should not be allowed to work a reversal.
E. A. Cook, Jr., Lexington, Wells, Martin & Lane, Omaha, for appellant.
W. A. Stewart, Lexington, for appellee.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
Henry S. Clouse brought this action in the district court for Dawson County against the Saint Paul Fire and Marine Insurance Company, a corporation. The purpose of the action is to recover for loss suffered by plaintiff to his real and personal property which he alleges was caused by lightning, a risk covered by two policies of insurance that had been issued thereon by defendant. Defendant denied that plaintiff suffered any loss from causes covered by either of its policies. Verdict was for the plaintiff and from a judgment entered thereon, its motion for judgment notwithstanding the verdict or for a new trial having been overruled, defedant appeals.
After the appeal was perfected the appellee died. His death being suggested to the court the action was revived in the name of Mary Clouse, executrix of the estate of Henry S. Clouse, deceased, as appellee.
Admittedly, or by undisputed evidence, the record establishes that Henry S. Clouse was the owner of a two-story brick building located on Lot 19 in Block 10 in the town of Sumner, Dawson County, Nebraska; that he owned the office furniture, fixtures, counters, shelves, showcases, scales, and cash registers located therein and used by the tenant thereof, Earl McFarland, in operating a store therein; that appellant had issued two policies of insurance, both in effect on June 22, 1947, covering the building and the foregoing personal property located therein against direct loss or damage caused by lightning; and that in the early morning of June 22, 1947, somewhere between the hours of 1 a. m. and 2 a. m., the older or south portion of this building collapsed and seriously damaged the building and also the personal property which was located therein.
Just what caused the building to collapse and do the damage that it did is the question in issue. Appellant contends that the evidence establishes, without question, that the only proximate cause of the west wall of the older part of the building collapsing was that water had seeped into the ground and saturated the dirt under the foundation thereof and so weakened its structural support that it settled and this caused the wall to collapse. That there is ample evidence in the record to support this theory is beyond question and the jury was properly advised thereof. However, the jury expressly found, as shown by its answer to interrogatory No. 1, and its general verdict, that lightning struck the building and that it was the proximate or direct cause of the building collapsing and doing the damage that it did. Under this situation the question arises as to whether or not the record contains sufficient evidence to support the jury's verdict, for if it does, then the verdict and judgment entered thereon must stand.
'In a jury case where different minds may draw different conclusions or inferences from the adduced evidence, or if there is a conflict in the evidence, the matter at issue must be submitted to the jury, but where the evidence is undisputed, or but one reasonable inference or conclusion can be drawn from the evidence, the question is of law for the court.' Hamblen v. Steckley, 148 Neb. 283, 27 N.W.2d 178, 179. See, also, Fulcher v. Ike, 142 Neb. 418, 6 N.W.2d 610.
As stated in Fairmont Creamery Co. v. Thompson, 139 Neb. 677, 298 N.W. 551, 555: 'The rule is well stated in Farr Co. v. Union Pacific R. Co., 10 Cir., 106 F.2d 437, 439, as follows: 'The rule is that in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed.'' See Sindelar v. T. B. Hord Grain Co., 116 Neb. 776, 219 N.W. 145.
However, 'In testing the sufficiency of evidence to support a verdict it must be considered in the light most favorable to the successful party, that is, every controverted fact must be resolved in his favor and he should have the benefit of every inference that can reasonably be deduced therefrom.' Remmenga v. Selk, 150 Neb. 401, 34 N.W.2d 757, 759.
'A policy against loss or damage caused by lightning to the property insured usually covers all known effects of electricity coming under the general head of lightning, and includes all loss or damage which results as a direct and natural consequence of the lightning, notwithstanding other incidental agencies may be instrumental in adding to the loss or damage.' 37 C. J., Lightning Insurance, § 2, page 661. 44 C.J.S., Insurance, § 28 page 490.
Under the terms of these policies appellant was only liable for 'direct loss' caused by lightning. 'Direct,' as so used, means 'immediate' or 'proximate,' as distinguished from 'remote' or 'incidental.' See Tracy v. Palmetto Fire Ins. Co. of Sumpter, South Carolina, 207 Iowa 1042, 222 N.W. 447; and Trexler Lumber Co. v. Allemannia Fire Ins. Co. of Pittsburg, 289 Pa. 13, 136 A. 856.
In determining the cause of a loss for the purpose of fixing insurance liability, when evidence of concurring causes of the damage appears, the proximate cause to which the loss is to be attributed is the dominant, the efficient one that sets the other causes in operation; and causes which are incidental are not proximate, though they may be nearer in time and place to the loss. Parish v. County Fire Ins. Co. of Philadelphia, 134 Neb. 563, 279 N.W. 170, 126 A.L.R. 703; Tracy v. Palmetto Fire Ins. Co. of Sumpter, South Carolina, supra; Trexler Lumber Co. v. Allemannia Fire Ins. Co. of Pittsburg, supra; and 6 Couch, Cyclopedia of Insurance Law, s. 1466, p. 5303.
The jury was so instructed.
There is evidence in the record that Henry S. Clouse bought Lot 19, which is 27 1/2 feet wide and 130 feet long, about 1920; that at that time there was located on the south end thereof a two-story brick building 25 feet wide and 60 feet long, which had been constructed sometime between 1892 and 1894; and that in 1922 he built a two-story brick addition thereto which was 27 1/2 feet wide and 70 feet long. This made the over-all length of the building 130 feet or the entire length of the lot. The building faced south but the entire east side thereof also fronted on a street. To the west was a vacant lot.
Between 7 and 8 p. m. on the evening of June 21, 1947, an extremely heavy lightning, thunder, and rain storm began at Sumner. It resulted in about seven inches of rain falling. During the latter part of this storm, sometime between 1 and 2 a. m. of June 22, 1947, the south or older part of this building collapsed and completely demolished it and the contents thereof, and seriously damaged the new or north part of the building.
At the time of its collapse Earl McFarland, the tenant occupying the building, had...
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