Evana Plantation v. Yorkshire Ins. Co.

• Decision Date: 19 May 1952
• Docket Number: No. 38436,38436
• Citation: 214 Miss. 321,58 So.2d 797
• Parties: EVANA PLANTATION, Inc. v. YORKSHIRE INS. CO., Limited.
• Court: Mississippi Supreme Court

Page 797

58 So.2d 797

214 Miss. 321

EVANA PLANTATION, Inc. v. YORKSHIRE INS. CO., Limited.

No. 38436.

Supreme Court of Mississippi.

May 19, 1952.

Brunini, Everett, Grantham & Quin, Vicksburg, for appellant.

Clements & Clements, Rolling Fork, Watkins & Eager, Jackson, for appellee.

ETHRIDGE, Justice.

This case involves the question of whether damage caused to the roof of a building by sleet is covered by an extended coverage rider to a fire and lightning insurance policy which covers 'direct loss by * * * hail'. The trial court gave a peremptory instruction for the insurer.

The policy was issued by appellee, defendant below, Yorkshire Insurance Company, Ltd., on December 16, 1950 and admittedly was in force and effect at the time the loss was suffered. Appellant and plaintiff below, Evana Plantation, Inc., the insured, is a corporation owned by William Klaus, engaged in the general farming business about a mile south of Cary, Mississippi, in Sharkey County, and about seven miles south of Rolling Fork. Klaus testified that on the night of January 31, 1951, one barn on appellant's property which was insured for $1,000 was wholly destroyed, and another barn which was insured for $1,500 was damaged to the extent of six or seven hundred dollars, as a result of 'ice and hail and sleet' falling on their roofs.

Appellee did not contradict the fact or extent of the loss. After all of the testimony was in, appellant moved for a peremptory instruction in the amount of $1,500; the denial of this motion is assigned as error. In view of this motion and the uncontradicted testimony of Klaus, appellant indisputedly suffered a loss on the two barns insured by appellee in the amount of $1,500.

Nor is there any conflict in the evidence on the proposition that hail and sleet, along with ice, were substantial contributing causes of the roofs on the barns falling in at that time. The only witness on this issue was Klaus. He said that he did not know the exact time the barns fell in, but he thought that it was Wednesday night, January 31, 1951. The barns were standing Wednesday night and were collapsed Thursday morning. He testified that on that Wednesday ice, hail and sleet came down, 'everything that could come on the ground except snow'; that the icy particles which fell from the sky were small and hard, and that 'when you walked on them they would roll like a marble, about like a buckshot. * * *' These particles were a milky color. Klaus testified:

'Q. Was there any precipitation on the roof? A. It was a large amount of it. We worked Wednesday and Thursday with a large crew of men trying to get it off the roof.

'Q. Was that precipitation that fell from the sky frozen or just plain ice from rain falling on it? A. No, it was granulated. It fell and held and stuck there, and probably some rain fell that kept it there. They were granular in form.'

He said that he did not know the difference between hail and sleet, or how they were formed. On cross-examination be further testified:

'Q. Is it your idea that the roofs of those buildings fell or collapsed because of the weight on the roof? A. That is my idea; I don't know of any other reason.

'Q. How much of that ice was originally glaze, or how much was sleet or ice, you wouldn't know about that? A. No sir.'

The records of the U. S. Weather Bureau, introduced by appellee, reflect that sleet made up a considerable portion of the precipitation which fell January 29 through January 31. According to the testimony and weather bureau records, snow did not begin falling until Thursday, February 1, which was after the roofs had colllapsed. Appellee introduced no evidence to contradict Klaus' testimony that sleet was a substantial contributing cause of the rooofs of the buildings collapsing. Hence the rule stated in such cases as Miller v. Farmers' Mutual Fire Insurance Association of North Carolina, 1930, 198 N.C. 572, 152 S.E. 684, 685, is applicable: 'The exception presents the question whether the plaintiff must prove that a windstorm was the sole proximate cause of the damage or whether he may recover upon proof that it was the efficient cause, although snow upon the roof may have been a contributing cause. On this point the weight of authority is in support of the plaintiff's contention. The general rule is that, if the cause designated in the policy is the dominant and efficient cause of the loss the right of the insurer to recover will not be defeated by the fact that there were contributing causes.'

In fine, the record establishes without any dispute: (1) that appellant suffered a loss on the two insured barns in the total amount of $1,500 on Wednesday night, January 31, 1951; and (2) that the loss was occasioned in substantial part by sleet falling on the roofs of the barns.

The remaining question is whether 'hail' as defined within the terms of the insurance contract includes 'sleet'. The extended coverage provision of the policy provides in part as follows:

'Extended Coverage

'(Perils of Windstorm, Hail, Explosion, Riot, Riot attending a Strike, Civil Commotion, Aircraft, Vehicles, Smoke, Except as Hereinafter Provided)

'In consideration of the premium for this coverage shown on reverse side hereof, and subject to provisions and stipulations (hereinafter referred to as 'provisions') herein and in the policy to which this Extended Coverage is attached, including riders and endorsements thereon, the coverage of this policy is extended to include direct loss by Windstorm, Hail, Explosion, Riot, Riot Attending A Strike, Civil Commotion, Aircraft, Vehicles And Smoke. * * *

'Provisions Applicable Only To Windstorm And Hail: This Company shall not be liable for loss caused directly or indirectly by (a) frost or cold weather or (b) snow storm, tidal wave, high water, overflow or ice, whether driven by wind or not.

'This Company shall not be liable for loss to the interior of the building or the property covered therein caused (a) by rain, snow, sand or dust, whether driven by wind or not, 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 rain, snow, sand or dust entering the building through openings in the roof or walls made by direct action of wind or hail or (b) by water from sprinkler equipment or other piping, unless such equipment or piping be damaged as a direct result of wind or hail.'

The circuit judge gave a peremptory instruction for the appellee, Yorkshire Insurance Company, Ltd., apparently on the theory that 'hail' as defined in the policy does not include 'sleet'. However, an analysis of the terms of the contract and a consideration of the meanings of the word 'hail' indicate that it includes 'sleet' as one of the insured risks.

On the general nature and definition of 'hail' and the relevance of that word to 'sleet', appellants introduced L. T. Wade, an engineer, who had studied meteorology and who was in the commercial flying business operating an airport. He testified that by noon on Monday, January 29, the temperature had dropped considerably, it became 'extremely cold', and very fine frozen particles were falling; that ice particles continued to fall on Tuesday, and that the ground and windows on his house had an ice glaze on them. He said that he did not know any way by which the icy particles which he saw falling could be classified as sleet or hail, at least by their 'physical aspects'; that the general weather conditions for the three days in question extended all over central Mississippi. His home was about 13 miles from appellant's plantation. He thought that hail falling in the winter time was very rare, but said he didn't think anybody 'can take two pieces of the same size and say if it is hail or sleet'. He did not say whether it was hail or sleet which fell on Monday...