Morris v. Farmers Home Mut. Ins. Co., 12760

• Decision Date: 14 August 1972
• Docket Number: No. 12760,12760
• Citation: 500 P.2d 505,28 Utah 2d 206
• Parties: d 206 Omer MORRIS, Plaintiff and Respondent, v. FARMERS HOME MUTUAL INSURANCE COMPANY, Defendant and Appellant.
• Court: Utah Supreme Court

Page 505

500 P.2d 505

28 Utah 2d 206

Omer MORRIS, Plaintiff and Respondent, v. FARMERS HOME MUTUAL INSURANCE COMPANY, Defendant and Appellant.

No. 12760.

Supreme Court of Utah.

Aug. 14, 1972.

H. James Clegg, of Worsley, Snow & Christensen, Salt Lake City, for defendant-appellant.

George C. Morris, Salt Lake City, for plaintiff-respondent.

CROCKETT, Justice:

Plaintiff Morris recovered judgment against Farmers Home Mutual Insurance Company for water damage in the basement of his home which the trial court found to be covered under the terms of defendant's insurance policy. Defendant appeals, making the contentions: (1) that there is no basis in the evidence to support the trial court's finding that the damage was covered by the policy, but on the contrary, (2) the only reasonable finding from the evidence would be that it was from a cause affirmatively excluded by the policy.

The provision upon which the trial court found the defendant responsible is:

16. Accidental discharge, leakage or overflow of water or steam from within a plumbing, heating or air conditioning system or from within a domestic applicance . . ..

The provision upon which the defendant seeks to avoid liability is:

THIS POLICY DOES NOT INSURE AGAINST LOSS:

3. caused by, resulting from, contributed to or aggravated by any of the following:

c. water below the surface of the ground including that which exerts pressure on or flows, seeps or leaks through sidewalks, driveways, foundations, walls, basement or other floors or through doors, windows or any other opening in such sidewalks, driveways, foundations, walls or floors; . . .

There is no dispute about the fact that on the afternoon of September 2, 1970, water from some source flooded the plaintiff's basement, nor that it did damage to carpeting and other items to the extent of $400, as awarded by the court. ¹ The matter of critical concern is where the water came from. When plaintiff returned to his home at approximately 4:30 that afternoon he first discovered this flooding, but did not determine its source. Thereafter inspections of the premises were made by experts retained separately by plaintiff and defendant. They did not discover any broken pipes, taps or other over sources of leakage, nor did they find any likely source from below the surface or through sidewalks, foundations, etc., listed in the exclusion clause 3(c) hereinabove quoted. It was found that there appeared to be a 'cold seam' (the cement had been set at different times) between the foundation wall and the floor, from which it was possible that there could be seepage of ground water into the basement.

On the basis of the evidence the court made these findings:

The Court finds from a preponderance of the evidence that the water did not enter the basement from an outside broken pipe, nor from seepage through the walls or basement floor, nor from outside flooding, nor from a high water table, nor from any other specified source which is expressly excluded in the policy coverage.

The Court finds from a preponderance of the evidence that the water entered the basement due to accidental discharge of water from a plumbing fixture located within the basement. ² (Emphasis added.)

Defendant's attack on those findings is that because no one was there to see where the flooding water came from, nor had made any discovery as to a particular source, the evidence was insufficient to support the finding that it came from 'a plumbing fixture within the basement.' The nature of the world about us and the goings on therein are such that we witness only a small percentage of it by direct observation. A large portion of our awareness and knowledge is necessarily derived from deductions based upon our observations of existing facts and circumstances. It is important to apply this priciple to the prerogative of the court as the fact trier. He is entitled to make his findings of fact, not only on evidence concerning direct observations, but also to draw whatever inferences a person of ordinary intelligence and experience could fairly and reasonably draw therefrom. ³

Proceeding upon the premises just stated, we note our accord with certain other principles applicable to our consideration of defendant's attack upon the findings: that the plaintiff has the burden of proving that his loss comes within the coverage stated in the policy; that this burden is not met if the evidence is so inadequate or uncertain as to leave reasonable minds in a state of doubt or conjecture, but can only be satisfied by evidence which meets the universally recognized standard of proof required to establish facts in a civil case, that is, by a preponderance of the evidence. This requires that the evidence be such that reasonable minds acting fairly thereon could believe that the existence of the fact is more probable or more likely than its nonexistence, ⁴ so that a person of ordinary prudence could believe the fact with sufficient assurance to act upon it in relation to matters of serious concern in his own affairs.

We apply what has just been said to the evidence. It appears that an impartial and fair-minded fact trier might well reason: that inasmuch as there had been no previous flooding from underground, foundations, walls, etc., as excluded under paragraph 3(c) of the policy, he did not believe that the water came from any such source. He could then ask himself, how else could it get there, and proceed to reason further: that the only other source of water known to be entering the house, or to be within the house, was through and within the system of pipes and fixtures known as the plumbing; that it is within the realm of common experience that parts of the plumbing in the house, which includes the inlets, outlets, the various fixtures and drains, at times fail to function properly, or to be properly operated or attended, which may cause leakage, overflow, or the failure to drain, and thus result in water on the floor, and conclude therefrom, as the trial court did, that the most logical source was from the 'accidental discharge . . . from a plumbing fixture.' ⁵

It is my impression that at times any of us may be too much inclined to judge what is reasonable on the basis of what seems reasonable solely from our own point of view, and if it does not coincide with our own conclusion, to deem it unreasonable, rather than to allow a reasonable latitude as to what other reasonable minds may conclude. In order to honor the prerogative of the trial court as the finder of the facts, it is essential that this court should be as objective as possible, and keep in mind that the test to be applied is not necessarily whether the members of the court would reach the same conclusion, but whether the findings as made would be within the ambit of what any reasonable minds might find, even if they should differ from our own views.

In considering the issue presented by the defendant in the light of what we have said above, and upon the basis of the traditional rules which allow the trial court the prerogative not only of finding...