Miller v. Boston Insurance Company
| Decision Date | 06 October 1959 |
| Docket Number | No. 17601.,17601. |
| Citation | 271 F.2d 9 |
| Parties | Elmer MILLER, Appellant, v. BOSTON INSURANCE COMPANY, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Charles L. Howard, Jr., Birmingham, Ala., Joe Starnes, Jr., Starnes & Starnes, Guntersville, Ala., and Rogers, Howard & Redden, Birmingham, Ala., for appellant.
W. B. Fernambucq, Thomas B. Huie, Huie, Fernambucq & Stewart, Birmingham, Ala., for appellee.
Before RIVES, Chief Judge, and CAMERON and JONES, Circuit Judges.
Appellant Miller, plaintiff below, appeals from a judgment entered upon jury verdict directed by the court at the close of his evidence, in favor of appellee Boston Insurance Company, defendant below. Miller was engaged in constructing a building at Boaz, Alabama for occupancy by the Piggly-Wiggly Corporation. Just prior to its completion, the building collapsed because its front basement wall gave way soon after a bulldozer or front end loader had completed pushing dirt against the wall and smoothing and packing it in order that a cement walk might be constructed along the front of the store building. The action was predicated upon the Extended Coverage Endorsement attached to a policy issued to Miller by Boston. The portions of the endorsement relied upon for coverage of the collapse and consequent damage are these:
The building was one story, except that a basement was constructed under the entire building. Part of the walls of the basement were above and part below the uneven ground on which the building was constructed. The front wall was to be beneath the surface of the ground, which had to be built up in large part by moving dirt to the vicinity of the wall from other parts of the lot and by hauling in some twelve to twenty truckloads. The grading was done by a man named Brown under contract with Miller.
The front wall of the basement was approximately 120 feet in length and 14 feet in height, being constructed of 12 inch hollow concrete blocks. The wall was not braced at any point, and the blocks were not filled with concrete, and no cables or other means of support were placed in the wall, as was done in other portions of the basement.
While the front basement wall was under construction, dirt was gradually pushed in from other portions of the lot by bulldozer and, by the middle of August, 1957, the fill had been completed so that loaded trucks could drive across this wall onto the main floor of the structure. As the dirt was placed against the wall, it had been watered and tamped. All of this took place before the fire insurance policy was issued Sept. 14, 1957, the endorsement in question being added Oct. 1, 1957, at which time the building was practically complete.
One of the last things remaining to be done by Miller, the builder and owner of the building, was to construct a concrete sidewalk adjoining and parallel to the front of the building. The filled dirt along a portion of the wall had settled about 18 to 24 inches, and Miller procured Brown to haul 12 to 20 truckloads of dirt, which were dumped along the front of the building and about six or eight feet from the wall. On October 15, 1957, about four or four-thirty P.M., Brown came with a bulldozer-type machine known as a front end loader and started moving this dirt towards the building with the blade or dipper of the machine. This was done by operating the bulldozer at right angles to the wall in the process of pushing the truckloads of dirt towards the wall. As the machine approached the piles of dirt, the dipper or blade was lowered and the dirt was pushed directly against the wall, whereupon the operator would back the machine away from the wall dragging the blade along the ground to level it. When this process had been completed, the machine was operated parallel with the wall to pack the dirt. The movement of the vehicle was accompanied by jerks causing considerable vibration.
At no time did any part of the machine touch the wall. There was testimony that on one or more occasions, the blade came within three to six inches of the wall, but most of the time the tracks upon which the machine moved did not come nearer than three feet. This entire operation consumed about forty-five minutes, at which time Brown loaded the machine back onto the truck and left about the same time Miller was leaving. About thirty minutes thereafter the front basement wall collapsed and as the result the entire building fell in, as a consequence of which it had, for all practical purposes, to be reconstructed.
The only proof as to what caused the wall to cave in was an opinion given by Miller.1 Based upon all the evidence, including that quoted supra, the court below, when the plaintiff had rested, directed the jury to return a verdict for the defendant. We think that its action was correct. It is admitted that the vehicle handling the dirt did not make actual physical contact with the wall or any part of the building. That was the only contingency insured against. The words of the policy are plain and simple and words which are used constantly, and each of them has a definitely established meaning. The setting in which they were used tends to confirm the meaning which the court below attributed to them. The endorsement began with the statement that coverage was extended "to include direct loss by * * * aircraft, vehicles * * *" etc. Coverage as to aircraft was enlarged by providing that it should include loss from objects falling from such craft. With that exception, it is clear that the parties intended that the building was to be protected only from direct loss resulting from actual physical contact of a vehicle or an aircraft with the building. No good purpose will be served by setting out dictionary definitions of words so explicit in their meaning and so well understood by people generally. No case has been cited by either side which assists in arriving at the meaning the parties intended for the words to have.2
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