Marks v. Lumbermen's Ins. Co. of Philadelphia
| Decision Date | 11 December 1946 |
| Docket Number | 3540 |
| Citation | 160 Pa.Super. 66,49 A.2d 855 |
| Parties | Marks v. Lumbermen's Ins. Co. of Phila., Appellant |
| Court | Pennsylvania Superior Court |
Argued October 7, 1946.
Appeal, No. 176, Oct. T., 1946, from judgment of C. P. No. 3 Philadelphia Co., June T. 1945, No. 3332, in case of Howard S. Marks v. Lumbermen's Insurance Company of Philadelphia.
Assumpsit. Before Sloane, J.
Verdict for plaintiff and judgment entered thereon. Defendant appealed.
C L. Cushmore, Jr., with him White & Williams for appellant.
Stanley Folz, with him Morton P. Rome and Sundheim, Folz, Kamsler& Goodis, for appellee.
OPINION
This is a suit in assumpsit on an insurance policy issued by the defendant on a two-story frame dwelling owned by the plaintiff and situated at Beach Haven Park, Long Beach Island, New Jersey. The jury returned a verdict in favor of the plaintiff and after defendant's motions for new trial and judgment n. o. v. were refused by the court below, this appeal was taken.
The policy insured the plaintiff ". . . against all Direct Loss and Damage by Windstorm, Cyclone and Tornado . . ." but provided that the insurer shall not be liable "for loss or damage caused directly or indirectly by tidal wave, high water or overflow whether driven by wind or not . . .".
The plaintiff in his statement of claim alleged that on September 14, 1944, a windstorm and tornado caused direct loss and damage to the insured property. The affidavit of defense denied plaintiff's allegation and averred that any loss or damage to the property was caused by tidal wave and high water. This raised an issue of fact for the jury to determine and upon its determination would rest its verdict. It was undisputed that plaintiff's property was damaged to an amount in excess of the face of the policy and there is involved no interpretation or construction of the policy.
The burden was on the plaintiff to show that the risk insured against (wind) was the proximate cause of his loss in order for him to recover although a peril excluded from the policy (water) may have remotely or incidentally contributed thereto. While the peril insured against must be the approximate cause of the loss, it need not be the sole cause. Tannenbaum v. Fire Insurance Cos., 127 Pa.Super. 278, 193 A. 305; Trexler Lumber Co. v. Allemannia Fire Insurance Co., 289 Pa. 13, 136 A. 856. It is not enough to show that the plaintiff's loss may have been due to one or more causes for only one of which the insurer would be liable; he must individuate as the cause the one for which the insurer would be liable and the law requires only that the evidence as to the operative cause of the damage be enough to satisfy reasonable and well-balanced minds that it was the one on which the plaintiff insurer relies. Liguori, Admr., v. Philadelphia, 351 Pa. 494, 41 A.2d 563.
The jury by its verdict resolved the question of fact in favor of the plaintiff and on the motion for judgment n. o. v., he is entitled to have the evidence supporting his verdict considered and all the rest rejected, (Kulka v. Nemirovsky, 314 Pa. 134, 170 A. 261; Sorrentino v. Graziano, 341 Pa. 113, 17 A.2d 373) and he must be given the benefit of every fact and inference of fact pertinent to the issue which may reasonably be deduced from the evidence. Christ v. Hill Metal & Roofing Co., 314 Pa. 375, 171 A. 607.
The insured property is located on the Atlantic Coast of New Jersey about 150 feet from high tide mark. The official United States meteorological records show that a hurricane wind hit all portions of the New Jersey coast on September 14, 1944. The maximum wind velocity was 91 miles an hour and the peak wind velocity sustained for a five-minute period was 82 miles an hour, occurring at 4:30 P.M. There were no eye witnesses to the damage done to plaintiff's property but witnesses who saw the plaintiff's house the morning of September 15, testified that it had been moved off its foundation about four and a half feet with much accompanying damage; the heater and the columns were pushed through the living room floor, the second floor and the attic floor "pushed up", "each gable end was pushed out of position, and the bottom was pushed out of position; it (the house) was a wreck"; the house "instead of being square, seemed to be in a diamond shape, in a sort of twist".
Bay Avenue is a street running practically the entire length of Long Beach Island from Barnegat at the north to Beach Haven at the south, a distance of eighteen miles and farther inland than Jerome Avenue, where the plaintiff's house is located.
The plaintiff testified that on the day after the hurricane he traveled down Bay Avenue and saw many houses damaged and off...
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