Commercial Union Ins. Co. v. Byrne

Decision Date31 May 1971
Docket NumberNo. 46243,46243
Citation248 So.2d 777
PartiesCOMMERCIAL UNION INSURANCE COMPANY et al. v. Charles P. BYRNE, II and Charla M. Byrne.
CourtMississippi Supreme Court

Watkins & Eager, Elizabeth Hulen, Hassell H. Whitworth, Jackson, for appellants.

Estes & Blackwell, Gulfport, for appellees.

ON DIRECT APPEAL

INZER, Justice:

This is an appeal by Commercial Union Insurance Company (Commercial Union) from a judgment of the Circuit Court of Harrison County, Mississippi, in favor of its insureds, Charles P. Byrne, II and his wife, for damages to the Byrne home and its contents sustained during Hurricane Camille in 1969.

Commercial Union issued to Byrne an insurance policy insuring against all risks, except those excluded to the Byrne dwelling to the extent of $32,000 and $12,000 on the contents. The policy exclusions as to the coverage on the dwelling provided that:

THIS COVERAGE GROUP DOES NOT INSURE AGAINST LOSS * * *

Caused by, resulting from, contributed to or aggravated by any of the following:

(1) Flood, surface water, waves, tidal water or tidal wave, overflow of streams or other bodies of water, or spray from any of the foregoing, all whether driven by wind or not * * *

With reference to the interior of the dwelling and the contents thereof, the policy provides as follows:

2. Windstorm and Hail: This Company shall not be liable as respects this peril for loss caused directly or indirectly by (a) frost or cold weather, or (b) ice (other than hail), or (c) snow, or (d) sleet, all, whether driven by wind or not; for loss to the interior of the building(s) or the property covered therein, caused by rain, snow, sand or dust, whether driven by wind or not, unless the building(s) covered or containing the property covered shall first sustain an actual damage to roof or walls by the direct action of wind or hail and then shall be liable for loss to the interior of the building(s) or the property covered therein as may be caused by rain, snow, sand or dust entering the building(s) through openings in the roof or walls made by direct action of wind or hail.

The Byrne home is located north of Pass Road and is a considerable distance from the coast line in Gulfport, Mississippi.

The house was built in 1966 and is a substantial, well-constructed dwelling. The outside walls are of brick veneer. The house contains a garage and utility room, dining room, den, kitchen, breakfast room, four bedrooms, back screened porch and paved patio. Interior walls are panelled with plywood and the dining room was papered with expensive wallpaper.

Hurricane Camille struck the Gulf Coast on August 17, 1969. The Byrnes closed all doors and windows except one for ventilation in the kitchen and left home about 2:30 p.m. on that date. They returned on the afternoon of August 19.

Byrne sued for $19,420.07 damages to the dwelling and contents. He alleged that the dwelling was damaged to the extent of $7,772.28, and the contents to the extent of $11,549.73, and $148.06 was paid out in additional living expenses, covered by the policy. The jury returned a verdict for Byrne in the sum of $6,281.62.

Hrricane Camille did extensive damage to the coastal area generally. Its winds reached one hundred fifty miles an hour and in the area of the Byrne home five to seven inches of rain fell in a relatively short time. The waters in a nearby bayou rose between fourteen and sixteen feet above normal high tide and water rose in the Byrne home. The evidence showed, however, that the highest tide rose after the maximum winds did its damage. The Byrne home was surrounded by trees; twenty-three were broken or blown down; two were blown across the house. Damage to the trees was not covered by the policy. The garage door was opened by the wind. The wall between the dining room and the garage had been moved inward; the wall between the inside and outside utility room had been moved inward; the ceiling of the garage was water stained; the carpeting was wet; the inside of the house was stained; and the front door sustained damage. Windows were cracked but not blown out. All outside screens were damaged. The roof supports were broken where trees had struck the roof. Branches of trees had been blown through the roof and through the plywood roof decking. Inside the house some of the furniture had been overturned. Two lamps fell from tables and were broken. The lawn furniture was destroyed. The basement windows were loosened so as to admit rainwater. W. G. Derise, an experienced contractor, estimated the cost of necessary repairs to the dwelling at $6,178.75, although this estimate included several items for which it appears that Commercial Union is not liable, such as a $950 item for an air conditioner compressor. It did not include the amount expended as the cost of a new roof, amounting to $990, but did include $275 estimated rapair to the roof. It was stipulated that with the exception of the estimated cost of repair to the roof, Mr. Derise's estimate of the value of the damages to the Byrne dwelling was reasonable, but it was not agreed that the damages were covered by the policy.

It was also stipulated that the contents of the dwelling were damaged to an extent greater than $12,000 (the limit of coverage) but Commercial Union did not admit that any part of the damage to the contents was covered by the policy. The stipulation contained a three page list of the damaged items, although the individual items are not separately valued.

Both the damage to the dwelling and damage to the contents were subject to $50 deductible.

Commercial Union requested and the trial court refused an instruction peremptorily directing the jury that Byrne could not recover anything for damages to the household contents. This action is assigned as error. Since this question involves whether the trial court erred in refusing a peremptory instruction this Court must apply the rule recently stated in a number of cases, including, Dehmer v. Hederman, 252 Miss. 839, 173 So.2d 924 (1965), where it was said:

It is uniformly held that in determining whether a peremptory instruction should We must, therefore, determine whether the evidence and the reasonable inferences to be drawn therefrom show that the action of the wind and rain that entered the building through openings in the roof or walls made by direct action of the wind damaged the contents of the dwelling to the extent of more than the $50 deductible. In short, if more than a scintilla of evidence shows more than $50 damages to personal property within the coverage of the policy the trial court correctly overruled the peremptory instruction involved in this assignment of error.

be given the court must look solely to the testimony on behalf of the party against whom the peremptory instruction is requested, and must take that testimony as true along with all reasonable inferences which could be drawn therefrom. And even when the evidence is such that a judgment for the adverse party would have to be set aside as being contrary to the overwhelming weight of the evidence, it does not follow that a directed verdict should be granted. See Meaut v. Langlinais, 240 Miss. 242, 126 So.2d 866 (1961). Therefore, we view the evidence in this case in the light most favorable to Dehmer and look to it solely, together with all inferences that may be drawn therefrom. The facts are stated in accord with this rule. (173 So.2d at 925).

Commercial Union relies on Camden Fire Ins. Asso. v. New Buena Vista Hotel Co., 199 Miss. 585, 24 So.2d 848 (1945). The Camden Fire case contains some statements and quotations from other authorities that are pertinent to the present inquiry. However, that case is clearly distinguishable on the facts. The insured building was being repaired and a substantial part of the roof had been removed. When the workmen saw the storm approaching, they hastily tried to cover the portion of the building from which the roof had been removed, but were unable to successfully do so in order to efficiently prevent the water doing the damage. There was no question of fact in that case comparable to the one before the Court.

Another case relied upon by Commercial Union is Fire Insurance Exchange v. Paulson, 381 S.W.2d 199 (Tex.Civ.App.1964). That case was not resolved on a peremptory instruction. The Court reversed and remanded the judgment against the insurance company on a finding that the verdict of the jury that the insured's house did not sustain loss caused by high water was against the weight and preponderance of the evidence, and the case was remanded for a new trial. As indicated in the statement of the question we are not concerned here with the weight of the evidence but the refusal of the trial court to grant a peremptory instruction.

An extended annotation on the various aspects of the causes of loss under windstorm insurance policies appears in 93 A.L.R.2d 147 (1964). Examination of this annotation indicates that there are several categories of cases involving the cause of loss within the meaning of windstorm insurance. Most of the cases involve extended coverage and Byrne points out that the policy issued by Commercial Union is an all peril policy with certain exclusions. However, it seems that the provisions of the policies with reference to the problem at hand is...

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