Great Am. Ins. Co. v. Railroad Furniture Salvage of Mobile, Inc.
| Decision Date | 26 March 1964 |
| Docket Number | 1 Div. 100 |
| Citation | 276 Ala. 394,162 So.2d 488 |
| Parties | GREAT AMERICAN INSURANCE COMPANY v. RAILROAD FURNITURE SALVAGE OF MOBILE, INC. NIAGARA FIRE INSURANCE COMPANY v. RAILROAD FURNITURE SALVAGE OF MOBILE, INC. FIREMAN'S FUND INSURANCE COMPANY v. RAILROAD FURNITURE SALVAGE OF MOBILE, INC. -102. |
| Court | Alabama Supreme Court |
Mead, Norman & Fitzpatrick, Birmingham, for appellants.
Caffey, Gallalee & Caffey, Mobile, for appellee.
In the proceedings below the plaintiff had filed three separate suits claiming damages under policies insuring against direct loss by windstorm. The policies issued by the several defendants were identical except as to amounts, and each contained a standard pro rata provision. The Great American Insurance Company was liable for 50% of any loss, and Niagara Fire Insurance Company and Fireman's Fund Insurance Company for 25% each.
The cases were by agreement consolidated for trial, the issues and evidence being the same in each suit.
After hearing before the court, without the intervention of a jury, the court entered a separate judgment for the plaintiff against each defendant, and assessed damages against Great American of $6,354.96, and against Niagara and Fireman's Fund of $3,177.48 respectively.
A motion for a new trial was filed in each case and denied. Hence this appeal.
The damages awarded in the three judgments total $12,709.92. For convenience we will hereinafter treat the totality of the judgments, rather than as separate amounts, since the records were consolidated for appeal and the same principles control in each case.
The policies issued by the defendants contained coverage for perils of windstorm when '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 * * *.'
Sometime between 8:00 P.M., on 6 May 1960, and 7:45 A.M., on 7 May 1960, a portion of the roof of the building housing plaintiff's retail furniture business collapsed in the southeast corner. It had been raining and plaintiff's merchandise was damaged.
The plaintiff claimed the collapse was caused by windstorm. The defendants contended the evidence was insufficient to show that windstorm caused the collapse of the roof, but contended the roof collapsed because of rainwater impounded on the roof of the structurally weak building, and therefore was not within the coverage of the policies.
Assignments of error 1, 6, and 9, are grouped for argument and properly so, since all three assignments invoke the issue of whether the finding of the court that the loss sued for was caused by direct force of a windstorm, was palpably wrong and unjust, and contrary to the great weight and preponderance of the evidence.
The lower court, after hearing the witnesses, having found that the damage resulted from windstorm, such finding has the effect of a jury verdict and will not be disturbed unless palpably wrong. We are under the duty in this review to indulge all reasonable presumptions in favor of the trial court's findings, and cannot substitute our judgment for that of the trial judge on the effect of conflicting evidence. And if such finding is supported by the evidence, it is not subject to revision by us. Teague Hardware Co. v. Bankhead Development Co., 274 Ala. 697, 151 So.2d 611, and cases cited. And we must affirm the trial court's conclusions, if fairly supported by credible evidence under any reasonable aspect, regardless of what might be our view of the evidence. Lamar v. Lamar, 263 Ala. 391, 82 So.2d 558.
With these principles as a background, we set forth the following tendencies of the evidence presented by the plaintiff below, though admittedly, evidence was introduced by the defendant tending to contradict the plaintiff's evidence in its material aspects concerning the pivotal questions presented.
Alphonse Chaney was an employee of Harry's Restaurant on the night in question. This restaurant is in the same block as plaintiff's building and adjoins it.
Chaney testified that between 10:30 and 11:00 P.M., 'a hard windstorm' came up. There was not too much rain, a little sprinkle, but mostly wind. This wind blew about five louvers back into the blades of the attic fan at Harry's Restaurant, and the witness had to go up on the roof and remove the louvers. The witness was glad to descend from the roof because the 'wind was blowing pretty hard.'
The witness further testified that he had worked at Harry's Restaurant some sixteen years, and during that time water had backed up into the restaurant whenever it rained hard, but no water backed up into the restaurant that night. When he descended from the roof the wind was blowing garbage cans up and down the street on which Harry's Restaurant and plaintiff's building are located.
Pete Russo, another employee of Harry's Restaurant for some ten or twelve years, testified that the night in question was rather stormy--
He was aware of the wind throughout the night until he left the restaurant between 2:00 and 3:00 A.M.
Upon leaving the restaurant he drove Chaney to his home. He noticed plenty of limbs in the street. The only physical damage to the restaurant that night was to the louvers of the ventilating fan.
On cross examination Russo testified that he would not call the rain that night as flooding--'it did not rain that hard.' The limbs he observed in the street while driving Chaney home were in general as large as his arm. No large trees in the vicinity of the restaurant were blown down.
J. F. Pate, a witness for the plaintiff, testified that he is a partner in the J. F. Pate Construction Company, and has been in the general constructing business sine 1923. His company has built many of the main buildings in Mobile. During the thirty-nine years he has been in the constructing business he has been figuring the loads on roofs and structural strengths and his calculations have been checked out with the Southern Pine Manual. However, the building code of the city of Mobile governs what spans can be used.
He arrived at the plaintiff's building abount 8 A.M., on the morning of 7 May 1960, in response to a telephone call.
The roof of the plaintiff's building had collapsed in the southeast portion, possibly a fourth of the roof. He observed water six to eight inches deep in the gutter, and some three or four inches deep inside the store. The building is actually in two parts, one a two story building facing Beauregard Street with the one story addition on the south side. Water from the roof of the two story portion of the building ran onto the roof of the one story building, and then would flow toward the southeast corner where there is a scupper or hole in the wall of the parapet at the top of the building, which allowed the water to flow into a metal down spout.
The roof had an extra good pitch for flat roof and ran in all directions toward the southeast corner to the eight by twelve inch hole in the wall.
Mr. Pate gave detailed testimony as to the construction of the roof, the size of the beams, and rafters, and the manner in which the beams were nailed. The portion of the roof that had fallen in was nineteen feet square, and water from both roofs was going through the hole in the roof into the store below at the time of his arrival.
Mr. Pate testified that as it existed at the time of the collapse, the building had been erected in accordance with good building standards, and under the standards regarding the adequacy of relief systems, the relief system of this building was more than adequate. Mr. Pate figured that before the collapse the structure would support a superimposed load in excess of twenty pounds per square foot. A live load is a superimposed load over and above a dead load which results from the weight of the structure itself.
He examined the timbers and support members of the building and found them in good condition without any rot. In Mr. Pate's opinion the roof collapsed because of a superimposed load resulting from the wind.
On cross examination Mr. Pate testified that the Mobile Plumbing Code of 1959 sets forth the adequacy of a relief area based upon a four inch per hour rainfall, and the tendency of his testimony was that the plaintiff's building was well within the requirements of the building code. He further testified that he had seen this building since it was erected over thirty years ago and had seen rainfalls of five or six inches fall on the roof. The scupper hole in the wall was approximately level with the roof line and not more than an inch higher than the roof line, and therefore not over an inch of water would stand on the roof and that would be down in the southeast corner.
This witness did not see any of the rafters that were 'end nailed,' although there could have been one or two. Nailing rafters from the end is not as strong as lapping them, and lapping is the better practice.
The defendant's evidence was directed toward showing, first, that the roof collapsed because of the weight of ponding water on roof and, secondly, that the building was structurally unsound, and therefore not within the provisions of the policy.
In this connection the defendant introduced three expert witnesses, an architect, a structural engineer, and a consulting engineer.
They gave as their opinion that the collapse of the roof resulted from the weight of water impounded on the roof because of inadequacy of the size of the scupper to take care of the drainage directed to it.
Their opinions were arrived at after viewing the collapsed roof, its construction, etc., and applying thereto recognized engineering formulae. We will not attempt to set out the detailed and rather lengthy testimony of...
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