North British & Mercantile Ins. Co. v. Sciandra, 6 Div. 49

• Decision Date: 04 October 1951
• Docket Number: 6 Div. 49
• Citation: 256 Ala. 409,27 A.L.R.2d 1047,54 So.2d 764
• Court: Alabama Supreme Court
• Parties: , 27 A.L.R.2d 1047 NORTH BRITISH & MERCANTILE INS. CO., Limited, v. SCIANDRA.

Page 764

54 So.2d 764

256 Ala. 409, 27 A.L.R.2d 1047

NORTH BRITISH & MERCANTILE INS. CO., Limited, v. SCIANDRA.

6 Div. 49.

Supreme Court of Alabama.

Oct. 4, 1951.

Rehearing Denied Nov. 23, 1951.

F. W. Davies and Davies & Williams, all of Birmingham, for appellant.

Maurice F. Bishop and M. L. Gwaltney, Birmingham, for appellee.

LAWSON, Justice.

Frank Sciandra brought this action in the circuit court of Jefferson County against the North British & Mercantile Insurance Company, Ltd., a corporation. The purpose of the action is to recover for loss alleged to have been suffered by plaintiff to property, which loss he alleges was caused by lightning or windstorm, risks covered by a policy of insurance that had been issued by defendant.

Defendant denied that plaintiff suffered any loss for causes covered by the policy of insurance. It is defendant's insistence that the loss suffered by plaintiff was due to the fact that the building was not properly constructed and that an accumulation of water on the roof caused it to collapse.

The trial resulted in a verdict and judgment for plaintiff in the amount of $3,350. Defendant's motion for a new trial being overruled, it has appealed to this court.

There are seventy-three assignments of error. Some of them are not even referred to in brief. They will not be considered. Hillard v. City of Mobile, 253 Ala. 676, 47 So.2d 162; Hall v. Esslinger, 235 Ala. 451, 179 So. 639. Other assignments of error, while mentioned in brief, are not argued sufficiently to warrant treatment here. In many instances no authorities are cited. Cairnes v. Hillman Drug Co., 214 Ala. 545, 108 So. 362; Republic Iron & Steel Co. v. Quinton, 194 Ala. 126, 69 So. 604; Georgia Cotton Co. v. Lee, 196 Ala. 599, 72 So. 158; Hodge v. Rambow, 155 Ala. 175, 45 So. 678.

Defendant requested the general affirmative charge with hypothesis as to both counts of the complaint. Plaintiff's loss was alleged to have been caused by lightning in Count A and by windstorm in Count B. The refusal of the trial court to give numerous charges in the nature of affirmative charges is the basis of many of the assignments of error.

The manner in which the facts are stated in brief of counsel for defendant below, appellant here, causes us to believe that we should again refer to the rule so often stated that where, as here, the defendant insists it was entitled to the affirmative charge, we review the tendencies of the evidence in the light most favorable to the plaintiff, and this without regard to the view which we may have as to its weight, and allow such reasonable inferences as the jury was free to draw, not those which we think to have been the more probable. Cornelison v. Logan, 253 Ala. 618, 46 So.2d 215, and cases cited.

In July, 1946, a vacant lot at 1106 Third Avenue, West, Birmingham, was conveyed to plaintiff and his wife by deed. The wife's money, as well as plaintiff's money, was used in paying the purchase price. After the lot was purchased plaintiff entered into a contract for the construction of a building on the lot. Thereafter the building was constructed on the lot, the entire cost of which was paid by plaintiff.

On April 27, 1948, the defendant, through its agent Hughes, issued the insurance policy on which this suit was brought. Hughes had witnessed and notarized the original construction contract.

Plaintiff moved into the building on or about September 14, 1947, and continued to occupy the building as a delicatessen and store until July 16, 1948, on which day a part of the roof over the store collapsed. Plaintiff, his wife and their son all were active in the business carried on in the building.

What caused the roof of the building to collapse is the question at issue. There is evidence for the plaintiff which tends to show that the roof collapsed at approximately 4:30 p. m. on the afternoon of July 16, 1948. It is without dispute in the evidence that the weather had been bad all day. There had been rain, wind, and considerable electrical disturbances.

There was evidence to support the defendant's theory that the collapse of the roof was due to an accumulation of water on top of an improperly constructed building. But on this question the evidence was in sharp conflict. The jury found against the defendant on this issue. It was for the jury to determine which witnesses to believe.

We come to the question of whether or not the record contains sufficient evidence, when viewed in the light most favorable to the plaintiff, to present a jury question as to whether the damage to the building was caused by lightning.

The evidence going to show that there was an electrical disturbance of considerable magnitude in the vicinity of the insured property, standing alone, would not in our opinion support such a finding. But the evidence shows that plaintiff's son was in the building at the time the roof collapsed. He testified in substance that just before the roof collapsed there were repeated 'peals of thunder' that he saw a 'streak of lightning' come through the front of the building; that immediately the ceiling began to fall; that it sounded as if 'somebody' was breaking timber.

After the roof collapsed, some of the timbers appeared to have been splintered, but there were no marks found on the timbers indicating burns.

In support of its argument that it was entitled to the affirmative charge as to Count A which, as before shown, averred that plaintiff's loss was occasioned by lightning, defendant below, appellant here, in its original brief cited no case dealing with the exact question. In reply brief, the case of Clark v. Franklin Farmers' Mutual Fire Ins. Co., 111 Wis. 65, 86 N.W. 549, 551, was relied upon. In that case the Wisconsin court, in holding that the evidence was insufficient to support a finding that the loss was occasioned by lightning, referred to the fact that there were no marks of fire anywhere 'such as are customarily found where lightning has come in contact with dry wood.'

The facts in the case of Clark v. Franklin Farmers' Mutual Fire Ins. Co., supra, are easily distinguishable from those in the instant case. But counsel for appellant places much emphasis on the observation made by the Wisconsin court that there were no marks of fire. There are other cases wherein the absence of such evidence has not been considered in any wise controlling of the question of whether or not the loss was occasioned by lightning.

Counsel for plaintiff below, appellee here, has called our attention to a number of cases from other jurisdictions bearing on the question. We have found that there is an extensive annotation on the subject in 15 American Law Reports 2d, beginning at page 1017, wherein many cases are summarized, including some of those cited by appellee.

It would but encumber the opinion to set out here an analysis of the cases. Suffice it to say that we are clear to the conclusion that a jury question was presented as to whether the roof of the insured building was caused to collapse by lightning. We think this conclusion is fully supported by the cases hereafter cited from other jurisdictions. Phoenix Assurance Co. v. Loetscher, 215 Ark. 23, 219 S.W.2d 629; Caledonian Ins. Co. v. Naifeh, 229 Ky. 293, 16 S.W.2d 1046; Grasso v. Glen Falls Ins. Co., 133 Neb. 221, 274 N.W. 569; Hartford Fire Ins. Co. v. Cincinnati Ice Mfg. & Cold Storage Co., 9 Ohio App. 403; Shields v. Vermont Mut. Fire Ins. Co., 102 Vt. 224, 147 A. 352; Clouse v. St. Paul Fire & Marine Ins. Co., 152 Neb. 230, 40 N.W.2d 820, 15 A.L.R.2d 1008; Beakes v. Commercial Union Assur. Co., Ltd., 65 Hun. 621, 20 N.Y.S. 37; Warmcastle v. Scottish Union & National Ins. Co., 210 Pa. 362, 59 A. 1105. None of these cases is in all respects factually in point with the instant case. However, they do hold that under similar factual situations, jury questions were presented.

The next question for consideration is whether the evidence, when viewed in the light most favorable to plaintiff, is sufficient to make a jury question as to whether the damage to the building was caused by windstorm.

As before indicated, the evidence for the plaintiff tended to show that the roof collapsed 'around 4:30, something like that.' The records of the weather bureau in Birmingham showed that at 4:18 p. m. the wind was blowing at a rate of thirty-one miles per hour and continued to blow at that rate for five minutes and then gradually decreased. The superintendent of a ball park located a short distance from the insured building testified that 'the wind tore off about five squares of the park roof.' Plaintiff's son testified in effect that the wind was blowing at a rapid rate at the time the roof collapsed.

In original brief filed on behalf of appellant, two cases from other jurisdictions were cited in support of the contention that defendant was entitled to the affirmative charge as to Count B, the windstorm count. One of them, Sabatier Bros. v. Scottish Union & National Ins. Co. of Louisiana, La.App., 152 So. 85, is so clearly distinguishable from the instant case on the facts as not to require consideration here. The other case is that of Clark v. Fidelity & Guaranty Fire Corp., City Ct., 39 N.Y.S.2d 377, 380, by the City Court of Buffalo. As here pertinent, that case holds: 'While a twenty-eight M.P.H. wind may be no aerial lullaby, yet, in this court's opinion, it falls far short of qualifying under any or all of the above definitions as a 'Windstorm".

In so far as our research discloses, the case of Clark v. Fidelity & Guaranty Fire Corp., supra, has been cited but twice. In Metropolitan Ice Cream Co. v. Union Mut. Fire Ins. Co., Mo.App., 210 S.W.2d 700, while that case is cited, it was not followed in so far as it may be said to hold that as a matter of law a wind with a velocity of 28 m.p.h. cannot be said to be a windstorm. In the Metropolitan case, supra, the Missouri court held that a jury question was presented as to whether or not a...