Lesley v. American Sec. Ins. Co., 19687

• Decision Date: 30 August 1973
• Docket Number: No. 19687,19687
• Citation: 261 S.C. 178,199 S.E.2d 82
• Court: South Carolina Supreme Court
• Parties: James H. LESLEY, As Administrator of the Estate of James G. Lesley, Respondent, v. AMERICAN SECURITY INSURANCE COMPANY, Appellant.

Page 82

199 S.E.2d 82

261 S.C. 178

James H. LESLEY, As Administrator of the Estate of James G.

Lesley, Respondent, v. AMERICAN SECURITY INSURANCE COMPANY, Appellant.

No. 19687.

Supreme Court of South Carolina.

Aug. 30, 1973.

James C. Parham, Jr., of Wyche, Burgess, Freeman & Parham, Greenville, for appellant.

J. D. Todd, Jr., and Joseph E. Major, of Leatherwood, Wlaker, Todd & Mann, Greenville, for respondent.

BUSSEY, Justice:

In this action upon an insurance policy issued by appellant, plaintiff, upon a jury trial, recover a verdict of $27,288.46, plus interest from the date of denial of coverage by the appellant. After verdict, appellant moved for judgment n.o.v. and in the alternative for either a new trial or a new trial nisi, all of which were refused.

Plaintiff's intestate, James G. Lesley, was for a number of years engaged extensively in the poultry and feed business in Pickens County. On February 13, 1971, he owned, inter alia, 'an environmentally controlled pullet house' in which he had some 34,000 young pullets which had been hatched on or about November 10, 1970. In such a poultry house the air is constantly being changed by a number of electric fans which are thermostatically controlled. Mr. Lesley's source of electric power was the Blue Ridge Electric Cooperative. Shortly before 2 A.M. on February 13, 1971, there was a severe thunderstorm in the neighborhood and an interruption of the electrical power on Blue Ridge's line furnishing power to Mr. Lesley, which commenced, according to the evidence, at ten minutes to two and lasted until approximately 6 A.M. As a result of this cessation of power for approximately four hours, with the fans not operating, some 19,767 of Mr. Lesley's chickens died from excessive heat or suffocation.

The pullets in the particular poultry house were financed by Mr. Lesley through Blue Ridge Production Credit Association which required an insurance policy to protect it. Mr. W. R. Taylor, manager of the Association, on behalf of Mr. Lesley procured the necessary policy from the appellant. According to the usual procedure, the appellant forwarded the original policy and a copy to Mr. Taylor, the original being retained by the Association and the copy delivered to Mr. Lesley. ¹ The policy provided coverage, inter alia, against 'death of the poultry, directly and immediately resulting from: (a) fire and lightning * * *.' The loss of the poultry was promptly reported to the appellant who shortly thereafter denied liability under its policy and this litigation ensued.

Appellant first contends that it was entitled to a directed verdict, asserting that there was no competent evidence that the power interruption was caused by lightning, but even if so caused, no proof that the loss was the 'direct and immediate' result of the power interruption by lightning. It is, of course, elementary that in consideration of a defendant's motion for a directed verdict, all of the evidence and the inferences reasonably deducible therefrom have to be viewed in the light most favorable to the plaintiff. A number of witnesses possessed of considerable education and experience in matters electrical testified as to the probable cause of the power failure, none of them professing to know the precise cause. We think no useful purpose could be served by reviewing the testimony of all these witnesses, some of which is rather technical. Suffice it to say that viewed in the light most favorable to the plaintiff, there is abundant competent evidence from which a jury could reasonably have inferred that in point of fact lightning did cause the power failure, and that the death of the chickens was the 'direct and immediate result' of lightning, within the meaning and intent of the policy.

Appellant next contends that the trial court erred in equating the terms 'directly and immediately' with 'proximate cause'. His Honor charged the jury that in order for the plaintiff to recover, he had to prove that lightning was the direct and immediate factor in bringing about the death of the chickens and that lightning was the proximate cause, defining proximate cause as follows:

'Now, proximate cause is the efficient cause. Proximate cause means literally the cause nearest in point in time. But under the law it does not necessarily mean that. It means here the efficient cause, it is the direct cause, the cause without which the loss would not have occurred. So, it is your duty to decide what was the proximate cause of the death of the chickens.'

We are not convinced that the charge complained of was erroneous. There is authority in this State for the proposition that the terms 'proximate and immediate' are virtually synonymous. Suber v. Parr Shoals Power Co., 113 S.C. 317, 102 S.E. 335. In 43 Am.Jur.2d 1100, Insurance, Sec. 1182, Proximate Cause, we find the following:

'The general rule of insurance law is that only the proximate cause of loss, and not the remote cause, is to be regarded in determining whether recovery may be had under a policy of insurance, and that the loss must be proximately caused by a peril insured against. But proximate cause has a different meaning in insurance cases than it has in tort cases. In tort cases the rules of proximate cause are applied for the single purpose of fixing culpability, and for that reason the rules reach back of both the injury and the physical cause to fix the blame on those who created the situation in which the physical laws of nature operated; in insurance cases the concern is not with the question of culpability or why the injury occurred, but only with the nature of the injury and how it happened. The maxim 'in jure, non remota causa sed proxima spectatur,' is applied in a much more literal sense to cases in which the liability of an insurer is to be ascertained than to those involving a breach of contract or a tort. If the nearest efficient cause of the loss is one of the perils insured against, the courts look no further. In such cases the insurer is not to be relieved from responsibility by showing that the property was brought within the peril insured against by a cause not mentioned in the contract.

'If the nearest efficient cause of the loss is not a peril insured against, recovery may nevertheless be had if the dominant cause is a risk or peril insured against. When it is said that the cause to be sought is the direct and proximate cause, it is not meant that the cause of agency which is nearest in point of time or place to the result is necessarily to be chosen, since the dominant cause may be concurrent or remote in point of time or place. In other words, in determining the cause of a loss for the purpose of fixing insurance liability when concurring causes of damage appear, the proximate cause to which the loss is to be attributed is or may be the dominant or efficient cause--the one that sets the others in motion--although other and incidental causes may be nearer in time to the result and may operate more immediately in producing the loss.'

Appellant next asserts that having charged the law of proximate cause, His Honor should have charged 'intervening cause.' Assuming without at all deciding, that there is anything in the instant case to render a charge upon 'intervening cause' appropriate, no issue of error because of failure to so charge is properly before us. Appellant requested no such charge and interposed no objection to the charge based upon the present contention.

Appellant's next contention is that there was error on the part of the trial judge in permitting respondent's counsel to argue certain matters to the jury. Appellant's objection to the jury argument does not appear in the record, nor was there any recordation of the argument. Reference to such is made in appellant's motion for a new trial and in His Honor's order denying a new trial. It is well settled that considerable latitude is allowed counsel in drawing inferences and deductions from the evidence and in arguing the same to the jury. Johnson v. Life Ins. Co. of Georgia, 227 S.Ct. 351, 88 S.E.2d 260. Arguments of counsel, and objections addressed thereto, of necessity have to be left largely to the sound discretion of the trial judge who is on the scene and in much better position than an appellate court to judge as to what is improper argument under the circumstances. Crocker v. Weathers, 240 S.C. 412, 126 S.E.2d 335. App...