Home Mut. Fire Ins. Co. v. Cartmell

• Decision Date: 03 September 1968
• Docket Number: No. 5--4616,5--4616
• Citation: 245 Ark. 45,430 S.W.2d 849
• Parties: HOME MUTUAL FIRE INSURANCE COMPANY, Appellant, v. Gerald CARTMELL, Appellee.
• Court: Arkansas Supreme Court

Page 849

430 S.W.2d 849

245 Ark. 45

HOME MUTUAL FIRE INSURANCE COMPANY, Appellant, v.Gerald CARTMELL, Appellee.

No. 5--4616.

Supreme Court of Arkansas.

Sept. 3, 1968.

Estes & Brazil, Fayetteville, for appellant.

Van H. Albertson, Huntsville, for appellee.

JONES, Justice.

Gerald Cartmell sued the Home Mutual Fire Insurance Company in the Madison County Circuit Court on an insurance policy for damage caused by lightning to the foundation of a house under construction.Judgment was entered in favor of Cartmell on a jury verdict for $371.48.Statutory penalty of 12% and attorney's fee in the amount of $250 was assessed against the insurance company, and it appeals to this court relying on the following points for reversal:

'1.The court erred in refusing to give appellant's offered instruction No. 4 which directed the jury to return a verdict for the appellant.

'2.The court erred in allowing appellee to introduce the opinion of Sol Stevens as an expert as to what caused the damage.

'3.The court erred in allowing Mr. Sol Stevens to testify as an expert.'

Cartmell contends that the damage was caused by lightning, within the coverage of his insurance contract, and the company contends that the damage was caused by water, within the exclusionary clause.This entire case turns on the fact question of whether the damage complained of was caused by lightning.The jury found that it was, so the question before this court on appeal is whether there was any substantial evidence to support the finding of the jury, and we conclude that there was.

The record before us reveals the following facts: In August, 1964, Mr. Cartmell had under construction a house 72 feet long and 26 feet wide.The house was being built on a little knoll with the length of the house running north and south and the front facing east.The natural drainage was to the west.A full basement for the house had been excavated the entire length of the house with a bulldozer and a concrete basement floor had been poured.The east and west walls of the basement, which also constituted the foundation for the house, had been constructed against the vertical side walls of the excavation, with twelve inch by sixteen inch concrete blocks laid eleven blocks high.The construction of a chimney and fireplace had been started in the center of the basement and this construction had proceeded to the floor level of the house.The house itself had been constructed on this foundation and was 75% complete when the workmen quit for the day on August 17, 1964.

When the construction was begun, prior to August 17, Mr. Cartmell obtained an insurance policy from the appellant insuring the house up to $10,000 against damage caused by windstorm and lightning, but excluding damage caused by high water or overflow, whether driven by wind or not.On the night of August 17, an electrical rainstorm occurred in the vicinity and when the workmen returned to the house on the morning of August 18, a part of the west wall of the basement, or the west foundation of the house, was down inside the basement and mud and some water was in the basement.

At the trial, Mr. Cartmell testified as follows:

'Q.Now, on the morning of the 18th day of August, did you notice any damage to your house?

A.I sure did.The west wall was blowed plum out of it.

Q.Now, you're talking about the basement wall?

A.That's right, the basement wall.

Q.When you say it was blown out, clarify that a little for the jury, will you?

A.Well, there was two hundred and thirty blocks busted all to pieces and they were busted to pieces across the basement wall, twenty-six feet.

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Q.What was the general condition of the basement when you observed it on the morning of the 18th, other than the blocks being scattered around?

A.It was just a mess.

Q.Did you notice anything outside the house?

A.Well, there was--.

Q.On the west side of the house?

A.Well, there was a hole there.

Q.How large was the hole?

A.Oh, probably three foot in diameter.

Q.Where was the hole?

A.About the center of the basement wall.

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Q.This hole you saw near the septic tank on the west side of the house, what did it look like to you?

A.It was a hole about three foot in diameter right where the plumbing come out of the west wall.

Q.Had you or any of the workmen dug such a hole there?

A.No, sir.

Q.And you've testified that there was damage to the plumbing also?

A.Yes, sir, there were some Ts that were busted where the--and an elbow, I think.Mr. Markley, he replaced that.He was doing the plumbing at the time.

Q.Do you know of your own knowledge know (sic) whether or not there was an electrical storm the night of the 17th?

A.Yes, sir, there was.There was here in Huntsville.I lived in Huntsville then in the basement of the Western Shop.'

Mr. Stevens, a stonemason who was in the process of building a fireplace and chimney in the center of the basement, testified as follows:

'Q.All right, * * * would you tell us what the condition of the wall was?Was it standing up straight or was some of the blocks broken or--go into that.

A.Well, I would say that three-fourths of them was broke all to pieces and was scattered all over the inside of the basement.

Q.Now, what else was in the basement other than the blocks?

A.Well, there was some mud.

* * *

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Q.Have you seen the results of lightning striking various objects?

A.I have.

Q.Did you examine the damage or did you go along the west side of the Cartmell house?

A.I did.

Q.What did you notice there?

A.Well, they was quite a pothole there, different to what it was the night before.And it looked like the mud had went plum in and it had sprayed on my fireplace footing.

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Q.What, in your opinion, caused the damage?

* * *

* * *

A.Well, I can say this, it wasn't compression against the wall.

Q.Well, what, in your opinion, caused the damage?

* * *

* * *

A.If it wasn't lightning, I wouldn't know what it was.'

In determining whether or not the trial court erred in its failure to...