Lunday v. Lititz Mut. Ins. Co., 47064

• Decision Date: 23 April 1973
• Docket Number: No. 47064,47064
• Parties: Vallie L. LUNDAY et al. v. LITITZ MUTUAL INSURANCE COMPANY.
• Court: Mississippi Supreme Court

Page 696

276 So.2d 696

Vallie L. LUNDAY et al. v. LITITZ MUTUAL INSURANCE COMPANY.

No. 47064.

Supreme Court of Mississippi.

April 23, 1973.

Steckler, Ward & Reid, Biloxi, for appellants.

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

ROBERTSON, Justice:

This is a Hurricane Camille case. Vallie L. Lunday brought suit against the Lititz Mutual Insurance Company in the Circuit Court of Harrison County on a fifteen thousand dollar fire and extended coverage insurance policy insuring an old three-story rooming house at 124 Fayard Street in Biloxi.

This rooming house was located about 1 block east of the Buena Vista Hotel and about 1/2 block north of the beach. During Hurricane Camille on August 17, 1969, this house was severely damaged, with most of the damage being to the lower part. Lititz, in its answer, admitted $2500.00 damages because of windstorm, and after the jury returned a verdict for the defendant judgment was entered for the plaintiff for the $2500.00 admitted damage.

The policy was not an all-risk policy (Comprehensive Dwelling Policy). It was a fire and extended coverage policy with these provisions:

'EXTENDED COVERAGE (Applies only in consideration of Additional Premium as shown on the first page of this policy)-

In Consideration of the premium for this coverage, and subject to the provisions herein and in the policy to which this Extended Coverage is attached including endorsements thereon, This Policy is Extended to Insure Against Direct Loss by Windstorm, Hail, Explosion, Riot, Riot Attending a Strike, Civil Commotion, Aircraft, Vehicles, and Smoke, Except as Hereinafter Provided.

Water Exclusion: This Company shall not be liable for loss caused by, resulting from, contributed to or aggravated by any of the following-

(a) 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;' (Emphasis added).

The evidence was undisputed that during Hurricane Camille tidal water rose inside the house to a height of 4 feet above the first floor while outside the tidal water was 6 1/2 feet deep. In addition to heavy damage to the floor and plastered walls, there was damage to the brick piers, the mud sills and floor joists apparently caused by a wracking or twisting motion of some kind. The supporting dirt had been washed or scoured out around some of the brick piers.

The first assignment of error was that the verdict of the jury was against the overwhelming weight of the evidence and evinced bias, passion and prejudice on the part of the jury. There is no merit to this contention. There was ample evidence to support the verdict of the jury.

In his second assignment of error, the appellant contends that the court erred in not allowing S. O. Brown 'to testify as to specifically what damage resulted from which peril.' Brown did not inspect the Lunday property until five months after Camille, yet Brown was allowed to testify at great length and in minute detail. The record is silent as to what else Brown might have said if he had been allowed further latitude. The trial judge did rule at one stage:

'BY THE COURT: He is answering the ultimate question now which is for the jury to decide. Now as an expert he can tell us exactly what he found there and it would be valuable to the Court and to the Jury in telling us the amount of pressure that a wind of certain velocity will exert on a building, the amount of pressure that water will exert, what effect on the increase in pressure that wave action will have and that sort of thing, but to say that this was done by wind is a question for the jury. He can tell us up to how he arrived that this is the wind but just at this point saying this was done by wind that would not be admissible, in my opinion.

'BY MR. STECKLER: Yes Sir.

'BY THE COURT: In other words, don't cut the corners, it might take all day, but he can tell us how he arrived at this.

'BY THE COURT: HAVE THE JURY COME BACK.'

Appellant next contends that:

'The lower Court erred in allowing counsel for the Appellee in his argument to the jury to promise the jury that, 'If you will bring back a verdict for the Defendant, I will see to it that Mr. Lunday is paid $2500.00'. The Court further erred in including in its judgment that the Defendant should pay the said $2500.00 to Plaintiff.'

The record is silent as to any objection at the time by appellant's counsel, and this alleged error was not preserved for review by a bill of exceptions or in any other manner. We note that the insurer in its answer admitted $2500.00 of windstorm damage, and, of course, the insurer is bound by its pleadings. Woodrich v. St. Catherine Gravel Co., 188 Miss. 417, 195 So. 307 (1940). The...