Grace v. Lititz Mut. Ins. Co.

• Decision Date: 17 January 1972
• Docket Number: No. 46483,46483
• Citation: 257 So.2d 217
• Parties: Lioyd K. GRACE and Willis T. Guild, Jr. v. LITITZ MUTUAL INSURANCE COMPANY.
• Court: Mississippi Supreme Court

Page 217

257 So.2d 217

Lioyd K. GRACE and Willis T. Guild, Jr. v. LITITZ MUTUAL INSURANCE COMPANY.

No. 46483.

Supreme Court of Mississippi.

Jan. 17, 1972.

Estes & Blackwell, Gulfport, for appellants.

Bryant & Stennis, Gulfport, Bacon & Smith, Jackson, for appellee.

BRADY, Justice:

This case arose out of the damage wrought by Hurricane Camille to an office building owned by Lloyd K. Grace and Willis T. Guild, the appellants, who were architects and partners. The appellee, Lititz Mutual Insurance Company, insured appellants' property in the amount of $10,000 on the office building and $2,500 on the contents thereof. The appellants gave due notice and filed proof of loss with appellee. After receiving notice of refusal to pay the coverage, the appellants filed suit in the Circuit Court of Harrison County. This case has been tried twice, the first having resulted in a mistrial for the reason that the jury could not agree upon a verdict. The second trial resulted in a judgment in the sum of $12,500 for the full amount of coverage on the office building and its contents. The trial judge overruled the appellants' motion to have the verdict corrected as to interest and denied appellee's motion for a judgment non obstante veredicto and, in the alternative, for a new trial. The trial judge, however, granted appellee's motion for a new trial on damages alone unless within thirty days appellants entered a remittitur in the amount of $2,500. Appellants, refusing to enter the remittitur, appeal this judgment and appellee cross-appeals.

This is the third case ¹ before this Court dealing with the question of whether the destruction of a building was caused by the wind forces of Hurricane Camille or whether tidal water contributed to or aggravated the loss. In each of these cases, liability was denied under the following exclusion provision of the policy:

'This Coverage Group does not insure against loss:

(b) 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;'

The office building in question was a seventy-five year old white frame house which appellants had converted from a family residence into an office building. The building consisted of six offices, a reception room, two baths and a kitchen area and was located on West Beach between Gulfport and Biloxi, situated immediately east of the Sahara Motel. It was stipulated between counsel representing the litigants that the policy was in full force and effect and that the value of the building was at least $10,000 and the contents thereof at least $2,500 at the time of the loss. The record discloses that the building, and likewise the contents thereof, were completely destroyed by Hurricane Camille.

The record further discloses these significant facts which are urged by appellants to refute the contention of appellee that the office was destroyed by water and not by wind. The spot on which the building was located was 14.7 feet above sea level and the highest static water mark at this locale to which the water rose was 20.4 feet above sea level. If the building was still standing at the time the water rose to its highest static level, there could only have been 1.7 to 2.7 feet of water above the floor. Appellants assert that there was no water damage done to the ceiling of the Sahara Motel which was situated at an elevation of 22.5 feet and the top of the roof thereof was 24.8 feet above sea level. A section of the ceiling from appellants' office building was found on the top of the roof of the Sahara Motel, which appellants urge is proof that only as a result of wind force could the ceiling of their office have been deposited thereon. One or more witnesses for the appellants testified that the construction of the building made it impossible for the building to withstand hurricane winds with higher velocity than seventy-five miles per hour or more. However, the record shows that this building did withstand other hurricanes including Hurricane Betsy, which had winds of 100 miles an hour and in excess thereof.

The record supports appellants' contention that the design of the office building made it less resistant to wind than other buildings in the area for the reason that the building was constructed three to four feet off the ground on piers, thus exposing the floor and the bottom thereof to wind forces, which was not true of the Sahara Motel situated next door. The relation of the height of the office building to its width also exposed more surface to the wind force than would have been exposed by a lower building. Moreover, appellants point out that the overhanging roof on the porch area was a factor which augmented the uplift and upward force from below which was exerted on the office building by the action of the wind. The front wall of the office building had large windows which slid up and down into cavities when opened that constituted weaknesses in the front of the building. Also, there was the complete absence of diagonal bracing or trussing to the roof rafters and the ridge lines were only supported basically by vertical studs or braces. Moreover, there was only a single floor so that the diagonal bracing effect of a second floor was lacking.

Witness F. C. C. Brash, who testified in behalf of the appellants, lived in his home on 16th Street, immediately north of the Grace and Guild property. He testified that his house was approximately twenty-four inches above the ground at the front and approximately thirty inches above the ground at the rear. He testified that on the night of the hurricane, the winds were very high and that he could hear more than he could see, although he had a flashlight and could see ripping limbs. He first noticed the arrival of water around midnight when he felt water on the floor; he looked out the windows and opened the back door, the north door, and saw that the water was about level with his floor. After the water had begun to recede between 12:30 and 1:00 o'clock, he waded out in water above his knees and tied up his boat. Mr. Brash also testified that his house was protected by trees and other houses, thereby making the winds sweep upward and scoop over his house. He testified that in addition to his house suffering actual water damage, shutters had been blown off the east and west sides of his house, and his TV antenna was blown down as well as two trees. However, not a single window was broken in his house nor was there a single shingle lost off his house.

Mr. Charles Roy Strange, also testifying in behalf of appellants, stated that on the night of the storm he was in his house two doors east of the Grace and Guild office building. There was testimony to the effect that the Strange house was far more substantially constructed than the office building of Grace and Guild. Mr. Strange testified emphatically that the house in which he was situated 'exploded' and was completely destroyed by wind prior to the onslaught of any flood waters. Mr. Strange testified that he went out through the air and that he hit the top of the garage and glanced to the right and landed in the top of a tree that was already blown down. He testified further that he got a flashlight out of his back pocket and looked back at where the house had been because he was afraid it was going to come after him, but the house was already gone. Mr. Strange testified that he had great difficulty in turning into the wind because it was so strong; that the wind blistered the side of his face. He was not able to give any estimate of what time it was when he first noticed the water rising around the tires of his truck when he had gone out the back door earlier. However, he testified that the water did not rise suddenly, but that it was just a gradual rise and there was very little wave action. This was subsequent to the time that his house had exploded.

In substance, the foregoing constitutes the proof which was offered by the appellants. The appellee and cross-appellant, however, seriously controverts this proof, as shown in the following testimony which it urges proves that the tidal waters contributed to or aggravated the loss of the appellants' office.

Henry E. Griset, a professional engineer, testified on behalf of the appellee that the wind velocity from the storm stayed approximately the same for miles to the north of the coastline; that it was still recorded at hurricane speed in Jackson, Mississippi. Appellee contends that, therefore, there would be no difference in the velocity of the wind at the property on 16th Street and the Grace and Guild property. From his inspection of the property, Griset determined that there was a distinctive pattern of damage, and he compared the destructive forces of wind and water and testified that water is much more destructive. When shown photographs taken after the hurricane of the area surrounding the Grace and Guild property that were admitted as exhibits in this case, Griset testified that the wind velocity was the same throughout the areas covered. Griset further testified that wind forces could not have destroyed the Grace and Guild building without causing greater damage to the Rauschkolb house just north of it, and it was Griset's opinion that water forces caused the destruction of the appellants' building.

The pattern of damage along the flooded coastline was ten to fifteen times more severe than the pattern of damage just slightly inland in the unflooded areas. Also, the house of F. C. C. Brash, who lived immediately back of the appellants' property, suffered little or no damage. Defendant attributes this to the depth of the water. Another house on 16th Street, just one block north of the appellants' property, had been moved off its foundation some sixty-three feet, butted on the inside with water...