Newark Trust Co. v. Agricultural Ins. Co.
| Decision Date | 12 December 1916 |
| Docket Number | 2153. |
| Parties | NEWARK TRUST CO. et al. v. AGRICULTURAL INS. CO. |
| Court | U.S. Court of Appeals — Third Circuit |
Raymond Mountain, Van Blarcom & Marsh and T. McCurdy Marsh, all of Newark, N.J., for plaintiffs in error.
Fairlie & Vanderbilt, of Newark, N.J. (Leo Levy, of New York City, of counsel), for defendant in error.
Before BUFFINGTON, McPHERSON, and WOOLLEY, Circuit Judges.
This is an action on a policy of tornado insurance. The jury rendered a verdict for the defendant upon the court's construction of the contract, which was embodied in the charge with the force of a binding instruction. The plaintiff sued out this writ, assigning as error so much of the charge as relates to the interpretation of the contract.
The insured property was situate at Monmouth Beach, New Jersey. It was a frame dwelling built upon brick foundations. It stood close to the ocean upon a low bluff arising from the beach. It was protected from the ocean by a bulkhead built fifty feet in front of it. This bulkhead was of timber braced back into the land, and was about ten feet high. Connected with its two ends at right angles were 'return bulkheads,' running back from the ocean one hundred feet to a point inland about midway the house, built to protect the house from the side wash of the sea. The space within this built-up box like structure was filled with sand and was used as a lawn.
At midnight of January 2, 1914, a great storm began, increasing in intensity and lasting three days. The wind, blowing on shore, grew to the force of a hurricane. The storm was marked not only by wind of unusual velocity, but by unprecedented high tides. According to the testimony of the witness Lockwood, which was more favorable to the plaintiffs than any other, the storm increased with the first flood tide, and the wind 'caused the sea to come in ' and come up to and against the main bulkhead, forcing the planks off and knocking it out in front, and also caused the sea to reach around the south end of the bulkhead, cutting away the sand and washing it out. As this tide began to fall, 'it left about eighteen inches of sand next to the house where the brick foundation was, but the wind blew so hard that it shook the house and the front of the foundation tumbled down and caused the house to go about 35 degrees angle down; then the tide fell, and it stayed there until the next tide. ' It was further testified that the second flood tide, being as high as the first, likewise swept around the bulkheads, further washed away the sand, and finding the house in its fallen position broke it apart and carried it to sea.
At the time of its destruction, the house was insured by the defendant insurance company under what is commonly known as a Standard Tornado Policy. By this policy, the insurance company insured the owner against 'all direct loss or damage by windstorms, tornadoes, cyclones or hurricanes, except as hereinafter provided. ' The risks excepted appear first in the following clause:
'This company shall not be liable for any loss or damage caused by hail, driven by wind or not, snowstorms, frost or cold weather; * * * nor for the loss or damage occasioned directly or indirectly by or through any fire, explosion, tidal wave, lightning, high water, overflow, cloudburst; * * * nor for any consequential loss of any kind.'
The plaintiffs, in right of the insured, brought this action on the policy, upon the theory that the damage was occasioned by wind within the meaning of the general liability clause, and that the defendant is not saved by the clause exempting it from liability for damage caused by 'high water,' under a proper definition of that term, contending 'that if there was high water (contributing to the damage to the building), the proximate cause of the damage was not such high water, but the wind which made the water high, and that the court should have charged the jury to that effect.'
The court submitted to the jury the issue whether the damage was occasioned by wind or water, with appropriate instructions upon the law as to the defendant's liability upon either finding. The first instruction relates to the company's liability for damage caused by wind, under the issue fairly raised by the testimony of Lockwood as to whether the house was shaken down by the wind or was caused to fall by the action of the water washing away its foundations. This instruction is as follows:
'The plaintiff can only recover in this case after it has been established by the greater weight of the evidence * * * that the loss or damage to this house was the result of the direct action of this windstorm on the day in question.'
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