Pruitt v. Hardware Dealers Mut. Fire Ins. Co.

• Decision Date: 29 May 1940
• Docket Number: No. 9345.,9345.
• Citation: 112 F.2d 140
• Parties: PRUITT et al. v. HARDWARE DEALERS MUT. FIRE INS. CO., STEVENS POINT, WIS.
• Court: U.S. Court of Appeals — Fifth Circuit

112 F.2d 140 (1940)

PRUITT et al. v. HARDWARE DEALERS MUT. FIRE INS. CO., STEVENS POINT, WIS.

No. 9345.

Circuit Court of Appeals, Fifth Circuit.

May 29, 1940.

B. D. Murphy, of Atlanta, Ga., and Joseph H. Blackshear, E. D. Kenyon, A. C. Wheeler, Chas. J. Thurmond, and Boyd Sloan, all of Gainesville, Ga., for appellants.

Grover Middlebrooks, of Atlanta, Ga., and G. Fred Kelley and Wm. P. Whelchel, both of Gainesville, Ga., for appellee.

Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges.

SIBLEY, Circuit Judge.

The fire insurance policy sued on covered a stock of merchandise in a four story brick building in Gainesville, Georgia, which collapsed and burned at the time of a tornado at about 8:30 A. M. on April 6, 1936. In defense was pleaded a clause in the policy, "If a building or any part thereof fall, except as the result of fire, all insurance by this policy on such building or its contents shall immediately cease." The insurance company moved for an instructed verdict, but under Rule of Civil Procedure 50, 28 U.S.C.A. following section 723c, decision of the motion was withheld and the case was submitted to the jury, who found for the plaintiff. On motion within ten days thereafter for judgment notwithstanding the verdict, and in the alternative for a new trial, the court gave judgment for the defendant on the ground that the evidence conclusively showed that the collapse of the building caused by the tornado occurred before any of the merchandise was attacked by fire. The plaintiffs appeal.

The ground floor of the store was one large room with a small office partitioned off about the center of one side. To the rear of the office and about the center of the rear half of the store was a large cast iron stove weighing over 300 pounds, red hot on the morning in question. The merchandise near the stove was non-inflammable hardware, but on a desk near it the mail had been opened and there was some paper and packing materials, while beyond the office to the front was a counter of athletic clothing and fishing tackle, and to the rear of the store a stock of paper bags. Everyone in the store was killed except the assistant book-keeper, Harold Head. He testified that at the first approach of the storm he went to the rear to the elevator and found the electric current was off, and then went to the front door, the stove being all right each time he passed it. Through the store's glass front the storm could be seen approaching, with debris flying in the air. The darkness became complete. He started to the office, which contained a very large iron safe, with the doors open. As he went someone opened the front door, and a burst of wind broke in the plate glass front windows, hurling the glass back where Head was. The roaring drowned all other noises. He did not notice any smoke or fire in the store or anything blowing about, but was not in position to see the stove or what was happening in the store after he entered the office and crouched against the safe and behind its open door. The building soon fell, the wreckage confining him against the safe. At once he noticed smoke and heard fire crackling in the direction of the stove and could feel its heat. In five minutes, he thinks, he struggled upwards free, and fire was coming through the debris which was ten or twelve feet deep. Some witnesses testify to seeing flames coming from the ruins within a minute or two after the tornado passed, it having lasted only one or two minutes. Some saw smoke rising from more than one place. Others say they saw neither smoke nor fire for some time later. Many say there was a very strong wind which preceded the tornado by several minutes, which blew men and automobiles about the streets, and which could be the same that blew in the glass front of the store. Head, the only witness of what happened in this store, was not impeached in any way, but due to the excitement of the occasion his impressions of time may not have been accurate, and he might have failed to notice all that happened. He admits that he could not see or hear because of the darkness and roaring just before he got to the office, and was in no position to observe anything after he got behind the safe door. Exactly what happened to and about the stove in the moments between the blowing in of the glass front and the fall of the building no witness knows. It must rest on inference from the circumstances.

The floors and ceilings of the building were of wood. When they fell on the red hot stove a fire naturally would result, and a conclusion that this fire was thus originated, and so was not within the insurance, would be entirely justified. If the building had not fallen, but the fire had occurred, a conclusion that the stove was blown over by the wind which broke in the glass, that the coals were blown around, or that the inflammable goods towards the front of the store were blown back against the red hot stove and ignited would not be unreasonable. It would not necessarily be contradictory of Head's testimony. That the building did fall means only that two possible origins of the fire are suggested, near in time, but very different as respects the insurance. One feels, as did the judge, that the fall of the building is the more adequate and probable explanation of the fire; but if there was fire in several places in the ruins immediately after the storm, as some witnesses say, that would be easier explained by fire being scattered before the building fell than by the ruins falling on the stove. The question was for the jury.

The fallen building clause in the policy is reasonable and valid in Georgia, as elsewhere. Nalley v. Hanover Fire Ins. Co., 56 Ga.App. 555, 193 S.E. 619; Smith v. Etna Ins. Co., 58 Ga.App. 711, 199 S.E. 557; Hartford Fire Ins. Co. v. Doll, 7 Cir., 23 F.2d 443, 56 A.L.R. 1059. The clause in Georgia, and generally elsewhere, is...