Metropolitan Ice Cream Co. v. Union Mut. Fire Ins. Co.

• Decision Date: 20 April 1948
• Docket Number: No. 27351.,27351.
• Parties: METROPOLITAN ICE CREAM CO. et al. v. UNION MUT. FIRE INS. CO. et al.
• Court: Missouri Court of Appeals

210 S.W.2d 700

METROPOLITAN ICE CREAM CO. et al. v. UNION MUT. FIRE INS. CO. et al.

No. 27351.

St. Louis Court of Appeals. Missouri.

April 20, 1948.

Rehearing Denied May 21, 1948.

Appeal from St. Louis Circuit Court; William L. Mason, Judge.

"Not to be reported in State Reports."

Action by the Metropolitan Ice Cream Company and another against Union Mutual Fire Insurance Company and others on windstorm insurance policies for loss sustained by reason of an alleged windstorm. Judgment for plaintiffs, and defendants appeal.

Reversed and remanded for a new trial.

Franklin E. Reagan, Adolph K. Schwartz, and Sievers & Reagan, all of St. Louis, for appellants.

Victor Packman and Melvin L. Newmark, both of St. Louis, for respondents.

WOLFE, Commissioner.

This is an action brought by the owner of a building and a corporation occupying the building, for losses sustained by reason of an alleged windstorm. It is against four insurance companies, two of which insured the building and three of which insured the machinery and equipment belonging to the corporation. From verdicts and judgment for the plaintiffs defendants appeal.

Plaintiff Simkowitz owned a brick building on Park Avenue, in the City of St. Louis, which was occupied by the Metropolitan Ice Cream Company. It was a two-story structure and had upon the roof a cooling tower made of wood. This superstructure was twenty-one feet high and weighed about thirteen tons. It rested on two steel "I" beams, the ends of which were directly upon the top of the thirteen-inch brick walls of the building. The walls, which were old, contained no pilasters, nor were there any steel plates beneath the "I" beams.

There was a sharp drop in the temperature on the night of November 29, 1944, and according to a witness named Atkinson, the general manager of the Metropolitan Ice Cream Company, a violent wind came up early in the morning on November 30, which shook the windows of his home to such an extent that he arose at 2:00 in the morning to see what was occurring. It was still violent at the time he left to go to work. He stated that signs were swinging and paper was blowing around as he was driving to his place of employment at about 7:30 in the morning.

Another witness named Rick, who was a clerk employed by the company, testified that as he drove to work he could feel the wind swaying his car and that it came in gusts. He arrived at the plant and went to the locker room to change his clothes and noticed an open hinged window that was swinging against a steam pipe. As he shut the window he could hear the wind whistling through the passageway between the building and a four-family flat on adjoining property. He had just removed his shirt when he heard a "rumbling or whistling" and another employee of the company ran in and told him that water was coming in the pasteurizing room. He then went to the second floor and found the roof was partly off, the tower gone, and boards and tar paper were flying around. The east wall had broken in a V shape and the pipe which carried water to the tower had been torn away.

The property of the Metropolitan Ice Cream Company was said to be damaged to the extent of $3,049.67 and the building damage was placed at $2,842.72. The plaintiff company carried windstorm insurance in the total sum of $47,000. Grain Dealers National Mutual Fire Insurance Company's policy covered 26.6 per cent of the total, Western Millers Mutual Fire Insurance Company's policy covered 52.1 per cent of the total, and Farmers Alliance Insurance Company's policy covered 21.3 per cent of the total. Proofs of loss were filed with each of these insurance companies for its proportionate share of the loss. The owner of the building carried two policies of insurance, one with the Union Mutual Fire Insurance Company and one with the Farmers Alliance Insurance Company, each of the companies being admittedly liable for 50 per cent of any loss.

It is admitted that the policies were in force and that the proper proofs of loss were filed. Defendants sought to prove that there was no windstorm and that frost, faulty construction, and deterioration caused the wall to fall and toppled the tower which rested upon it.

The evidence presented by the defendants consisted in part of the testimony of the insurance broker who had placed the insurance for the Metropolitan Ice Cream Company. He was called by the insured on the morning in question and went to the building where he saw the broken parts of the tower and bricks from the wall strewn about, but he saw no sign of any damage, such as is caused by windstorms, in the surrounding neighborhood. The testimony of an adjuster was to the same effect, and there was further evidence that the velocity of the wind as officially recorded at the time the tower fell was seventeen miles per hour. Defendants presented evidence that the walls had deteriorated and were overloaded with the weight of the tower that had been placed improperly upon them.

The verdicts returned by the jury were against all defendants for their respective proportion of the damages, the total award to the Metropolitan Ice Cream Company being $3,047.67 and the total award to Simkowitz being $2,700.

It is asserted by defendants that the evidence was insufficient to show that plaintiffs sustained any direct loss by reason of a windstorm, and that the court should have directed a verdict for defendants. The evidence is assailed as being inadequate to prove that a windstorm existed. This court in Schaeffer v. Northern Assurance Co., Mo.App., 177 S.W.2d 688, loc. cit. 691, defined windstorm as follows:

"The term as used in a policy of insurance such as that with which we are here concerned means a wind of unusual violence. It is something more than an ordinary gust of wind or current of air no matter how long continued. It need not have the violence or the twirling or whirling features of a cyclone or tornado, but it must assume the aspects of a storm, that is, an outburst of tumultuous force."

This seems to sufficiently define it. Windstorms, like any other kind of storms, vary in violence and policies must be construed to cover a windstorm of any force and turbulence. If an insurer wishes to limit its liability to damages caused by storms of certain measured velocity or duration the policy should so state. The subject is discussed and resolved in a like manner in Gerhard v. Travelers Fire Ins. Co., 246 Wis. 625, 18 N.W.2d 336; and Clark v. Fidelity & Guaranty Fire Corp., City Ct., 39 N.Y.S.2d 377. As to whether or not a windstorm caused the damages was a question for the jury as it was an issue of fact. Schaeffer v. Northern Assurance Co., above cited; Garner v. New Jersey Fidelity & Plate Glass Ins. Co., Mo App., 200 S.W. 448; Sturgis v. American Hospital & Life Ins. Co., Mo.App., 174 S.W.2d 917; Home Exchange Bank of Jamesport v. Koch, 326 Mo. 369, 32 S.W. 2d 86. There must be adequate evidence, of course, to sustain a verdict, but in determining this the court is obliged to view the evidence and to draw all reasonable inferences from it in a light most favorable to the plaintiff. Defendants offered the records of the United States Weather Bureau, which were compiled from data taken some distance from the location of the building and showed a maximum wind velocity of 23 miles per hour for November 30. There was evidence that the records disclosed that the wind at the point they were taken was of a velocity of 17 miles an hour at the time the tower fell but this was not conclusive that the same condition prevailed in the neighborhood of Park Avenue, some distance away. As to the storm Atkinson testified that he was awakened twice during the night by the wind and he got up on one occasion to inspect his house because "the windows were rattling and there was a general disturbance." He stated that while riding to work in his automobile the wind seemed to be more violent and that signs were swinging and paper blowing about. Rick testified that he heard the wind whistling in the passageway between the building and the one next to it just before he heard the rumbling noise. Here was ample evidence from which the jury could conclude that there was a windstorm.

Defendants state that to accept the evidence as sufficient proof that the tower and wall were destroyed by the wind one must build inference upon inference, and we are cited to Cardinale v. Kemp, 309 Mo. 241, 274 S.W. 437. The statement of law as to inferences in this case has no application to the case under consideration. It is true that no one saw the tower blown over, but it was standing and during a violent wind it fell. Rick rushed to the second floor after it fell where he saw boards and tar paper still being blown about. Inferences arise as a logical deduction from known facts. One never really sees a wind blow paper or leaves about, but when paper flies through the air and leaves move across the lawn, even though this is seen from behind a sheltering window where no wind can be felt, a very logical inference arises and we conclude that the wind is blowing the leaves and the paper. Inferences may be equally valid when drawn from known facts or conditions after an occurrence under consideration, particularly where they are in close proximity to the occurrence. Here debris was blowing about immediately after the fall of the tower and the wall and this is a basis for a reasonable inference that the tower was blown down. The cases passing on the subject of inferences so hold. Van Brock v. First National Bank in St. Louis, 349 Mo. 425, 161 S.W.2d 258, loc. cit. 261; Wills v. Berberich's Delivery Co., 345 Mo. 616, 134 S.W.2d 125, loc. cit. 129; Gray v. Kurn, 345 Mo. 1027, 137 S. W.2d 558, loc. cit. 568; Farber v. Boston Ins. Co., 215 Mo.App. 564, 256 S.W. 1079.

Defendants assert that ...