Paul v. St. Paul Fire & Marine Insurance Company

• Decision Date: 24 March 1934
• Docket Number: 6223
• Citation: 253 N.W. 752,64 N.D. 479
• Court: North Dakota Supreme Court

253 N.W. 752

64 N.D. 479

A. W. PAUL, Respondent, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, a Corporation, et al., and ST. PAUL FIRE & MARINE INSURANCE COMPANY, a Corporation, Appellant

No. 6223

Supreme Court of North Dakota

March 24, 1934

Appeal from the District Court of Cass County, Swenson, J.

Affirmed.

Nilles Oehlert & Nilles, for appellant.

Where a policy of lightning insurance expressly excludes loss or damage by cyclone, tornado or windstorm coverage, it is limited to direct loss or damage caused by lightning. 37 C.J 661; Warmcastle v. Scottish Union Nat. Ins. Co. 201 Pa. 302, 50 A. 941.

The burden of proof is on insured to establish by a preponderance of evidence that the loss was occasioned by means specified in policy of insurance. Clark v. Franklin Farmers Mut. F Ins. Co. 111 Wis. 605, 86 N.W. 549; Hyer v. Janesville, 101 Wis. 371, 77 N.W. 729.

Where the evidence relied upon to show that lightning was the proximate cause furnishes only slight basis for speculation and conjecture, it does not warrant the submission of the question to the jury. 37 C.J. 661.

The actual cash value of the property at the time of the fire was the primary basis for the measure of liability of the insurer. Home Ins. Co. v. Sullivan Machinery Co. 63 F.2d 765.

Pierce, Tenneson, Cupler, & Stambaugh, for respondent.

If there is competent evidence in the record which will support the verdict, then all errors based upon the insufficiency of the evidence must be considered of no merit. Kasbo Constr. Co. v. Minto School Dist. 48 N.D. 423, 184 N.W. 1029.

The jury is the judge of the credibility of the witnesses and of the basic facts in a lawsuit. Akin v. Johnson, 28 N.D. 205, 148 N.W. 535.

A verdict with substantial support in the testimony is conclusive on issues of fact presented. Rille v. Woodward, 31 N.D. 113, 153 N.W. 951; Andrieux v. Kaeding, 47 N.D. 17, 181 N.W. 59; Weber v. Interstate Business Men's Acci. Asso. 48 N.D. 307, 184 N.W. 97.

The judgment of expert witnesses is not necessarily conclusive on the court or jury. 22 C.J. 728; 11 R.C.L. 586.

Where experts testify the jury must pass upon their credibility and the weight of their testimony just as in the case of nonexpert witnesses. Moore v. Chicago, R.I. & P.R. Co. 151 Iowa 360, 131 N.W. 32.

If the defendant contends that the loss was caused by negligence or other wrong on the part of the insured, he has the burden of proving that fact. 33 C.J. 111; Stevens v. Continental Casualty Co. 12 N.D. 463, 97 N.W. 862.

The burden is upon the insurer of establishing affirmatively that an injury to the insured, shown to be the result of an accident, is within some exception contained in the policy. Flath v. Bankers Casualty Co. 49 N.D. 1053, 194 N.W. 739.

That theory of the case which will support the verdict will be presumed to have been the one adopted by the jury. 4 C.J. 772.

The cash value of the building destroyed is the fundamental fact to be established, and any evidence which has a legitimate tendency to prove that fact is admissible. Citizen's Sav. Bank & T. Co. v. Fitchburg Mut. F. Ins. Co. 84 A. 970.

Burke, J. Burr, Ch. J., and Nuessle, Moellring and Christianson, JJ., concur.

OPINION

BURKE

The plaintiff had an insurance policy insuring certain buildings on his farm against loss by fire or lightning. The policy limits the amount of recovery to the actual value of the property at the time any loss or damage occurs and in no event to exceed what it would cost to repair and replace the same. It has a lightning clause and a provision that in no case shall it include damage or loss by cyclone, tornado or windstorm. The policy covered a silo which was insured for $ 750.00. The plaintiff claims that on the 6th day of June, 1932, the silo was struck by lightning and split in two. That prior to the destruction of the silo it was of the actual cash value of $ 1,100.00. The insurance company answered denying damage by lightning and alleging that any loss or damage was due to causes not insured against by the terms of the policy. At the close of all of the testimony the defendant moved for a directed verdict, which was denied and thereafter the defendant moved for judgment notwithstanding the verdict or for a new trial, which motion was overruled and the defendant appealed from said order and from the judgment entered upon the verdict.

In the late afternoon of the 6th day of June, 1932, the plaintiff states "A cloud came up from the southwest, and I was working in the field at the time. It came up quite rapidly, and I started homeward, and on my way home several crashes of lightning occurred, and by the time I reached the barn and just got my horses in the stalls, a terrific crash occurred, that blinded me, and there was a noise on the south end of the barn, and then immediately after the noise we heard on the south end of the barn there was a rumbling noise. It sounded like something hit the roof. I went to the south end of the barn, the door was open, and I discovered the silo was split open. It was split right down through the center. I made an examination of the silo. I found a bolt that had been melted off of the foundation. The bolt was used to anchor down the silo on the foundation. I found it right near the split of the silo. I sawed off the small piece which was in the foundation. There was some wind, but not strong. In going to the barn from the field there was no wind. I went to the south door and looked out and saw this silo. There was a breeze at that time but not a very strong wind. The small sheep troughs, I saw the next morning, they were made of light material and were not moved or disturbed in any way. The silo was empty, was in good condition and had never suffered any damage prior to that time. It was five or six years old. It was worth not less than $ 900.00. I used the old foundation when it was rebuilt. I would judge that it would not be worth over $ 100.00. I used some of the old material and the material and labor of rebuilding cost $ 642." On cross examination he testified that "at first I thought it was the wind and I told Mr. Bailey the next day that the wind had split the silo. I told him I was going to report it to the company that had built the silo as they had guaranteed it against wind. It was the next day that I saw Bailey. I did not ask Bailey to send in notice of wind loss. I left Mr. Bailey and went over to Kapaun Brothers. About ten minutes afterwards I returned to Bailey. He let me know right away before I left him that I did not have any windstorm insurance."

"Q. It was after that you had him send in notice of loss by lightning.?"

"A. Yes, sir."

"The top of the silo is 16 feet in diameter. It landed on the south end of the barn and came to rest on the northwest corner. It just rolled on the barn. The marks are still on the roof. It didn't go the length of the barn north and south; it rolled kitty-corner kind of in a circle. There was a little wind.

"Q. When you say a little wind, it was a considerable wind, was it not?

"A. No, no unusual wind. Nothing out of the ordinary. It did not move anything in the yard. The top struck the hip of the barn and rolled over that. There were a few doors opened in the chute on the north side and the window in the roof was open. The silo was 38 feet high. My conclusion that the wind blew the silo down was based on the fact that there was a wind, but there was considerable doubt in my mind at the time.

"Q. And that ten minutes or so you talked with somebody else was the time you changed your mind?

"A. Yes, sir, it was.

"Q. Mr. Paul, it is a fact that you made a claim to the insurance company that it was the wind that blew down the silo?

"A. No, sir. Never made no such claim.

"Right at the time it entered my mind that the lightning had done it, but when it did not burn down I assumed that it was the wind." On redirect examination "I first thought that it was the lightning but since the silo did not burn down I dismissed that thought."

John Norton was working for the plaintiff at the time and he testified that "about 5:30 I started to milk the cows, . . . there was a loud crash of thunder, and then there was another awfully loud crash, with lightning, followed pretty soon after. I got up from under the cow, and walked to the front door. I was scared. I said, 'My God, that was awfully close.' Mr. Paul went to close the back door, and he saw the silo was down. He saw that the silo was torn apart. I did not notice or hear any strong wind. There were some light sheep troughs outside that were not fastened to the ground and not disturbed. I heard the crash and heard something going. I thought it was the barn. Found it was the top of the silo.

"Q. Well didn't you hear this top of the silo bump on the roof?

"A. I didn't know what it was. I heard the crash, and I got up from under the cow and went to the front door."

The other neighbors testified as to the electrical storm but none of them testified as to any unusual wind.

It is the contention of the defendant that the evidence is insufficient to justify the verdict, and this contention is based on the testimony of the plaintiff. No one saw the lightning strike the silo and the plaintiff first thought that the damage was caused by the wind; that he told Mr Bailey and admitted on the stand that his first impression was that it was caused by the wind. The plaintiff, as a witness, was apparently very candid, admitting that he first thought it was the wind; that he told Bailey that he thought it was the wind. He states that his first impression at the time of the crash was that it was the lightning but when he saw the silo and there was no fire, then he thought it must have been the wind. His testimony and Norton's...