Grasso v. Glens Falls Ins. Co. of Glens Falls, N.Y.

• Decision Date: 16 July 1937
• Docket Number: 30013.
• Citation: 274 N.W. 569,133 Neb. 221
• Parties: GRASSO v. GLENS FALLS INS. CO. OF GLENS FALLS, N.Y.
• Court: Nebraska Supreme Court

274 N.W. 569

133 Neb. 221

GRASSO v. GLENS FALLS INS. CO. OF GLENS FALLS, N.Y.

No. 30013.

Supreme Court of Nebraska.

July 16, 1937

Syllabus by the Court.

Evidence in the record examined, and held sufficient to sustain the judgment of the district court.

Appeal from District Court, Douglas County; Fitzgerald, Judge.

Action by Theresa Grasso against the Glens Falls Insurance Company of Glens Falls, New York. Judgment for plaintiff, and defendant appeals.

Affirmed.

Evidence that insured building was in good condition prior to electrical storm, that insured's employee, who was in building on night of storm, saw flash of lightning and of fire and heard terrific crash, and that he then discovered large opening in basement wall constructed of reinforced concrete, and that pipes in basement were broken or snapped off, held to justify recovery by insured on lightning policy.

Morgan, Sutton & Fromkin, of Omaha, for appellant.

Paul J. Garrotto and Samuel P. Caniglia, both of Omaha, for appellee.

Heard before GOSS, C. J., GOOD, EBERLY, DAY, PAINE, and CARTER JJ., and LIGHTNER, District Judge.

EBERLY, Justice.

This is an action at law prosecuted by the appellee (plaintiff below) against the appellant (defendant below), based upon the provisions of an insurance contract indemnifying against loss arising by reason of damages occasioned by lightning. A trial to a jury resulted in a verdict and judgment for plaintiff in the sum of $400. From the order of the trial court overruling its motion for a new trial, the defendant insurance company appeals.

The issuance of the policy by the defendant, the payment of the premium by the assured, and the identity of the property damaged are not controverted.

Certain questions of procedure are presented by appellant in its brief, but they are not deemed of importance in view of the record considered as an entirety.

The controlling question is whether the damages relied upon by plaintiff were occasioned by the direct effect of lightning within the coverage stipulated by the terms of the policy. The defendant insists that the proof in the record is inadequate to establish that the damages sued for were the result of a stroke of lightning. On the 27th day of June 1935, prior to an electrical and rain storm, which occurred on that day, the property insured was in good condition, and had suffered none of the damages for which recovery is sought. This property is described in the policy as a " one story * * * frame building, including foundations, plumbing, electric wiring and stationary heating, lighting, * * * apparatus * * * also all permanent fixtures * * * belonging to and constituting a part of said building," etc., occupied by assured and situated on the premises described in the policy. There were two boilers situated in the basement that supplied heat to radiators situated within the building, and radiators situated in a greenhouse constituting a part of the property insured. These boilers communicated with a chimney built within the...