Dunes Club, Inc. v. Cherokee Ins. Co., 94

• Court: North Carolina Supreme Court
• Writing for the Court: PARKER
• Citation: Dunes Club, Inc. v. Cherokee Ins. Co., 130 S.E.2d 625, 259 N.C. 294 (N.C. 1963)
• Decision Date: 01 May 1963
• Docket Number: No. 94,94
• Parties: The DUNES CLUB, INC. v. CHEROKEE INSURANCE COMPANY. The DUNES CLUB, INC. v. STATE CAPITAL INSURANCE COMPANY. The DUNES CLUB, INC. v. AMERICAN NATIONAL FIRE INSURANCE COMPANY. The DUNES CLUB, INC v. MERCHANTS & MANUFACTURERS INSURANCE COMPANY. The DUNES CLUB, INC. v. NATIONAL FIRE INSURANCE COMPANY OF HARTFORD (two cases). The DUNES CLUB, INC. v. NORTH RIVER INSURANCE COMPANY. The DUNES CLUB, INC. v. STANDARD FIRE INSURANCE COMPANY. The DUNES CLUB, INC. v. UNITED STATES FIDELITY & GUARANTY COMPANY. The DUNES CLUB, INC. v. The AMERICAN INSURANCE COMPANY.

Page 625

130 S.E.2d 625

259 N.C. 294

The DUNES CLUB, INC. v. CHEROKEE INSURANCE COMPANY.

The DUNES CLUB, INC. v. STATE CAPITAL INSURANCE COMPANY.

The DUNES CLUB, INC. v. AMERICAN NATIONAL FIRE INSURANCE COMPANY.

The DUNES CLUB, INC v. MERCHANTS & MANUFACTURERS INSURANCE COMPANY.

The DUNES CLUB, INC. v. NATIONAL FIRE INSURANCE COMPANY OF HARTFORD (two cases).

The DUNES CLUB, INC. v. NORTH RIVER INSURANCE COMPANY.

The DUNES CLUB, INC. v. STANDARD FIRE INSURANCE COMPANY.

The DUNES CLUB, INC. v. UNITED STATES FIDELITY & GUARANTY COMPANY.

The DUNES CLUB, INC. v. The AMERICAN INSURANCE COMPANY.

No. 94

Supreme Court of North Carolina.

May 1, 1963

Smith, Leach, Anderson & Dorsett, Raleigh, and Harvey Hamilton, Jr., Morehead City, for defendants-appellants.

Wallace & Wallace, Kinston, and C. R. Wheatly, Jr., Beaufort, for plaintiff-appellee.

PARKER, Justice.

The ten defendants have filed a joint brief. They assign as error the denial of their motion for a judgment of nonsuit in each case, made at the close of all the evidence.

Plaintiff offered evidence which, considered in the light most favorable to it, Smith v. Rawlins, 253 N.C. 67, 116 S.E.2d 184, 85 A.L.R.2d 609, tends to show the following:

Its building, located on Atlantic Beach, was a one-story frame building, constructed on cypress piling. The piling was buried in sand five feet. The first main floor elevation was five feet above the elevation of the beach. The walls were of 2x4 studs covered with cypress shingles. The roof framing was of 2x8, 2x10, 2x6, which was good heavy construction. The roof was originally covered with cypress shingles, later covered with asphalt shingles. The building contained a ballroom 50x30 feet, over which was a high-pitched roof with a cupola in the center. At each of the four corners of the main section was attached a wing, over each of which was a lowpitched roof. This building on 11 September 1960 before Hurricane Donna came was in good condition, and had in it furnishings and equipment of the actual cash value of $11,500.00.

The building was located on the beach about 140 to 150 feet from the average high water mark of the Atlantic Ocean and on land about a foot above sea level. The Oceana Motel constructed of masonry was 260 feet to the northwest of plaintiff's building. The Oceana property is 134 feet to the west on a line parallel with the ocean front, at which point the Oceana Beach House is located. The relative elevation of the land between these buildings was practically the same. Plaintiff's building was about 700 to 800 feet south of the Fort Macon-Atlantic Beach Road. From its building to this road was an asphalt driveway through a gap in sand dunes and across land about level.

About 9:00 p. m., or earlier, on 11 September 1960 a hurricane known as Hurricane Donna struck the Atlantic Beach area from a direction approximately southeast. After 8:30 p. m. on this date, H. G. Ball, manager of the Oceana Motel, tried to go around the east side of the motel, and could not; the wind was too strong, it blew him back just like he 'was on roller skates.' He took hold of the handrailing and tried to pull himself around, and could not do so. He had a spotlight with a battery that would throw a beam 1000 feet. He testified: 'I did shine my light over towards The Dunes Club area to see if there was any water. I observed on the ground that night a lot of debris; I didn't observe any water. By debris, I meant building materials, shingles, and such as that. I could identify the debris as to where they came from. ' He was then permitted to testify, over defendants' objection, that the debris and building material came from The Dunes Club.

About five o'clock next morning H. G. Ball examined the Oceana Motel. On the east side he saw cypress shingles and debris everywhere that he could identify. The windows on the east side had plate glass windows about half an inch thick. These were broken out. On the east side of the motel was an upper deck 8 or 9 feet above the ground. He testified: 'No water during the night of September 11, 1960 got on the yard area or any portion of the area of the Oceana Motel. ' The closest building east of The Dunes Club was about 1000 to 1500 feet distant.

He was permitted to testify, over the objection of the defendants, in substance as follows: On the upper deck of the motel he saw a door and a lot of shingles and building material. The door was the inside door from The Dunes Club; the shingles and building material came from The Dunes Club. He had seen the door before; it was painted green on one side, and the other side was stained; it was the same kind of door which was inside The Dunes Club. Inside the rooms on the east side, where the windows were broken out, he found shingles and pieces of lumber next morning.

He testified further, without objection, in substance as follows: He was at sea for eight years in the Merchant Marines, and he has lived in Carteret County twenty years. He has been in hurricanes when at sea on shipboard, and he has been in Hurricanes Hazel, Ione, Connie, and Donna in Carteret County. He was then permitted to testify, over defendants' objection, in substance as follows: He has a wind gauge, which has a glass tube with a special fluid in it. The gauge is fastened 'to a thing up on the roof, the tube running down in the office. ' The wind pushes the fluid up, and it is graduated in miles per hour. He has had this wind gauge a couple of years, and he has watched it to see how hard the wind blows. The wind of Hurricane Donna on 11 September 1960 was very much stronger than the highest winds he experienced in Hurricane Hazel.

David Hart Mansfield on 11 September 1960 was manager of the Oceana Beach House and fishing pier. Before then he had worked for 27 years on a dredge boat--about ten years as captain--between Wilmington, Delaware, and the Canal Zone. 'It operated a 27" pipeline. ' During that time he was particularly concerned with winds and hurricanes. He had a ship-to-shore radio in order to get radio reports every hour, and 'when the wind got to a certain velocity, I had to take it in. ' He had a wind gauge aboard the dredge and read the gauge. He had a whether map under a glass on his desk, and he would sit there and plot the wind on the map as he received the radio reports of the velocity of the wind. He had a wind gauge on the wall of the beach house, which he had installed in the spring of 1959. He described the gauge in detail. It has a red fluid, which the wind pulls up and down. He knows how to calibrate it, and from time to time has attempted to calibrate it for accuracy.

Mansfield was permitted to testify, over the objection of the defendants, in substance as follows: He had compared the readings on his gauge with official weather reports and with the readings of other wind-measuring devices, and the readings on his gauge would be the same as others, maybe a point off one way or the other. By official weather reports he meant radio reports. He has been in 15 or 20 hurricanes and cyclones, and has measured them with wind gauges. At 9:15 p. m. on 11 September 1960 he could not tell what his wind gauge read because 'it went out of sight up into the fluid here. ' The last number he read was 80 miles per hour. He stood on the north side of the beach house. He saw debris blowing over the parking lot: it was in a whirl, going round and round. He had been in cyclones that acted like that. The next morning he saw debris on the ground. It was shingles and lumber from The Dunes Club, and an inside wall of The Dunes Club lying across the motel sidewalk. There was so much of this debris that he could not get his car to the beach house. Some of the boards were from 3 to 16 feet long, and there were some 2x4s and 3x6s.

Mansfield further testified, without objection, to this effect: About 9:15 p. m. on 11 September 1960 you could not keep your eyes open on the north side of the beach house for sand and wind. Visibility was bad. At the intersection of the Fort Macon Highway and The Dunes Club Road, the road was all gone, and a big hole was there, 5 or 6 feet deep. About 100 feet of The Dunes Club Road leading from the Fort Macon Road was gone.

About 8:17 a. m. the next day Edward Dixon, president of plaintiff, went to its property. At that time the only part of The Dunes Club's building standing was the men's locker room; all the rest of it was scattered here and there down to the Fort Macon Road. The roof part of the building was banked against a dune 50 to 75 feet from the Fort Macon Road. The dune was about 15 feet high. A part of the roof was within two or three feet of the top of the dune. The windows in the cupola on the roof were not broken. The ballroom floor of The Dunes Club was across the Fort Macon Road turned upside down. In The Dunes Club's building there had been an iron safe weighing 1000 to 1200 pounds in a little office adjoining the men's locker room. He saw this safe 100 feet from where the building stood, buried halfway in sand. He testified: 'I observed debris in the vicinity of the Oceana Motel that morning; I saw shingles and quite a few shingles from the club that I could identify on the porch and in the rooms of the Oceana Motel. I went into the bedroom because the windows on the east and west side of the motel were blown out. I saw debris in the bedrooms and on the porch of the Oceana Motel that had come up from The Dunes Club. I found debris on the outside of the motel on the porch and in some of the bedrooms upstairs and down. ' Where The Dunes Club Road intersected the Fort Macon Road, both roads were washed out.

The evidence tended to show the Oceana Motel Beach House, which had a sea wall, sustained no damage except the loss of a few shingles, and that the Oceana Motel's damages consisted of the broken windows on the east side and the removal of the covering of the roof.

Defendants' evidence tended to show that plaintiff's...