Ormsby v. Travelers Indem. Co. of Rhode Island

• Decision Date: 26 October 1978
• Docket Number: No. 5938,5938
• Citation: 573 S.W.2d 281
• Parties: George S. ORMSBY et ux., Appellants, v. The TRAVELERS INDEMNITY COMPANY OF RHODE ISLAND, Appellee.
• Court: Texas Court of Appeals

Page 281

573 S.W.2d 281

George S. ORMSBY et ux., Appellants, v. The TRAVELERS INDEMNITY COMPANY OF RHODE ISLAND, Appellee.

No. 5938.

Court of Civil Appeals of Texas, Waco.

Oct. 26, 1978.

William C. Rice, Jr. and Lester R. Buzbee, III, Rice, Buzbee & Kleiber, Houston, for appellants.

Bill M. Payne, Lawrence, Thornton, Payne & Watson, Bryan, for appellee.

OPINION

JAMES, Justice.

This is an appeal from an instructed verdict in favor of the Defendant. We reverse and remand.

Plaintiff-Appellants George S. Ormsby and wife brought this suit against Defendant-Appellee Travelers Indemnity Company of Rhode Island for water damage to their residential property based upon a hazard insurance policy commonly called a fire and extended coverage policy. The insured property consisted of a two story composition frame and brick residence together with household goods contained therein. The extended coverage portion of the policy included, among other things, insurance against "explosion." The policy in question ran for a one year term, to wit, from May 13, 1973, to May 13, 1974. Plaintiffs alleged that on or about January 1, 1974, the building and contents were damaged by water escaping into the home; and more specifically, such damage was caused by an "explosion of a water line in the attic of such structure." Said policy provided a maximum coverage of $33,000.00 on the building and $6,000.00 on the contents. Plaintiffs alleged the market value of the house immediately before the damage was $70,000.00, and immediately after the damage was $19,000.00, thereby causing alleged house damage of $51,000.00; that the market value of the contents before the damage was $10,000.00, whereas after the damage it was $2,000.00, thereby allegedly causing $8,000.00 worth of damage to said household goods.

The Defendant Insurance Company went to trial on a general denial. A jury was selected, empaneled, and sworn; whereupon, the Plaintiff Mr. Ormsby personally testified on direct and cross examination. After the lawyers on both sides completed their respective examinations of Mr. Ormsby, counsel for the Defendant moved for an instructed verdict. At this point the record shows that Plaintiff had at least one additional witness, a Mr. Samuel Bryant, ready to testify; however, the trial court granted the Defendant's motion for instructed verdict and discharged the jury without hearing any witness other than Plaintiff Ormsby. After the jury had been discharged, counsel for Plaintiff tendered the testimony of Samuel Bryant, which the trial court heard upon a bill of exception.

Plaintiff-Appellants assert five points of error and two cross points; however, we do not deem it necessary to discuss but two of such points, to wit, that the trial court erred in granting the instructed verdict in favor of Defendant: (1) because the evidence presented by Plaintiffs raised material fact issues, and (2) because the trial court cut Plaintiffs off by granting the instructed verdict before Plaintiffs had been given an opportunity to complete the presentation of their case. We sustain both of these contentions, and reverse and remand the cause for trial on the merits.

We revert to Plaintiff-Appellants' first point, that is to say, that Plaintiffs' evidence raises material fact issues which should have been submitted to the jury.

In determining whether it was proper to instruct a verdict in this case, we must view the evidence in the light most favorable to the Plaintiffs, the losing parties; we must indulge against the instruction every inference that may properly be drawn from the evidence; and if the record reflects any testimony of probative value in favor of the losing parties, we must hold the instruction improper; a peremptory instruction is warranted only when the evidence is such that no other verdict can be rendered and the winning party is entitled to judgment as a matter of law. White v. White (Tex.1943) 141 Tex. 328, 172 S.W.2d 295, and the cases cited therein on p. 296.

Applying the above rules as we must to the case at bar, we hereby summarize the evidence presented: Plaintiff Mr. Ormsby testified that he and his wife lived in Houston, Texas, but that they were the owners of the two story composition frame and brick residence in question together with household furniture and contents therein located in Hilltop Lakes Subdivision in Leon County, Texas, which house and contents were insured by Defendant by the insurance policy in question; that said policy consisted of fire and extended coverage, one of the perils insured against being that of "explosion." The policy was admitted into evidence. Said policy offered a maximum coverage of $33,000.00 on the house and $6,000.00 on the contents. Ormsby testified that on or about January 4, 1974, he arrived at his home covered by the insurance policy in question to find that said home and contents had suffered extensive water damage; that it appeared the water had come from somewhere in the attic of said house.

Ormsby testified that when he entered the house, the floor was wet and sopping, but that no water would run out because most all of the water was frozen. He went upstairs first, and found the carpet was wet on the stairs; however, the condition was so bad that he could hardly see the upstairs carpet because it was under sheetrock and insulation as he climbed through the debris. Upstairs the sheetrock was down from the ceilings so that he could see the ceiling rafters, the attic; and up to the roof; the walls were bulged out from water apparently having pushed them out; the furniture had fallen apart and "looked like it was melted"; the chandelier apparently had been knocked down on a table; everything in the house was mildewed and smelled bad; there were water marks around the walls which were six or seven inches above the floors. Ormsby further testified that he discovered a copper tube or water line in the attic that had a burst on one side. This copper tubing was a hot water pipe, that is to say, that it came off from and was connected to the upstairs hot water heater. He said he assumed the...