Richman v. Home Ins. Co. of New York

• Decision Date: 20 January 1953
• Parties: RICHMAN v. HOME INS. CO. OF New York
• Court: Pennsylvania Superior Court

94 A.2d 164

172 Pa.Super. 383

RICHMAN v. HOME INS. CO. OF New York

Superior Court of Pennsylvania.

January 20, 1953

Action in assumpsit to recover upon a water damage policy. Verdict for defendant, and from judgment of the Court of Common Pleas No. 5 of Philadelphia County (Tried in No. 3) at No. 1387 June Term, 1948, John A. Mawhinney, J., overruling plaintiff's motion for judgment non obstante veredicto or a new trial, plaintiff appealed. The Superior Court, No. 215 October Term, 1952, Dithrich, J., held that the evidence supported jury's finding that damage to insured merchandise was caused by backing up of sewers or influx of surface waters within policy provision expressly excluding such hazards from coverage.

Judgment affirmed.

Charles Polis and Philip S. Polis Philadelphia, for appellant.

Horace Michener Schell, Philadelphia, for appellee.

Before RHODES, P. J., and HIRT, RENO, DITHRICH, and ROSS, JJ.

DITHRICH Judge.

In this action in assumpsit based upon a water damage insurance policy, a jury returned a verdict in favor of defendant-insurer. This appeal is from the order of the court below overruling plaintiff's motions for judgment n. o v. and a new trial.

The policy in question insured ‘ against all Direct Loss and Damage caused solely by the accidental discharge, leakage or overflow of Water * * * from within the following source or sources: * * * [inter alia] Rain or Snow Admitted Directly to the Interior of the Building through Defective Roofs Leaders or Spouting, or by Open or Defective Doors, Windows Show Windows, Skylights, Transoms or Ventilators, except as herein provided * * *.’ But it specified that certain hazards were not covered, among them being ‘ loss or damage caused directly or indirectly, (a) by seepage, leakage or influx of water through building walls, foundations, lowest basement floors, sidewalks or sidewalk lights; or (b) by floods, inundation, backing up of sewers or drains, or the influx of tide, rising or surface waters; * * *.’

Plaintiff, who conducted a children's-wear business at 5701 Lebanon Avenue in the City of Philadelphia, produced evidence tending to show that a water damage loss she sustained, agreed by the parties to be $1150.45, was covered by the clause of the policy insuring against damage by rain. The defense was that the loss was occasioned by hazards not covered by the policy. Being an affirmative defense resting on exceptions or exclusions in the policy, the burden was cast upon defendant to establish it. Armon v. Aetna Casualty & Surety Co., 369 Pa. 465, 87 A.2d 302.

The jury found specially that the loss was not caused by rain being admitted directly to the interior through a defective door and open windows, as contended by plaintiff, but was cause directly or indirectly (1) by seepage through building walls, foundations and sidewalks and (2) by the influx of surface waters or the backing up of sewers and drains. The cause of the loss being a factual matter, cf. Murphy v. Insurance Co. of North America, 355 Pa. 442, 50 A.2d 217, if the evidence, when viewed in the light most favorable to defendant, is sufficient to support the findings and verdict of the jury, we must hold that defendant has met the burden imposed upon it and that plaintiff cannot recover.

Appellant's shop is in the basement of a building, located at the northwest corner of the intersection of 57th Street, which runs north and south, and Lebanon Avenue, which runs east and west. A small lawn level with the public sidewalk separates the entrance to the shop and 57th Street. The floor of the shop is about five inches above the level of the lawn. The intersection is a low spot at the bottom of downward grades descending from all directions. The lowest point of the intersection, its southeast corner, is five inches lower than the northwest corner.

About 8:30 p. m. on August 9, 1947, there occurred a violent rainstorm, described as a cloudburst, which caused a flooding of the area in and about the intersection. A watermark on a pole indicated that the water at the southeast corner had been more than six and one-half feet deep. There was testimony that the water pushed out a large window of a barber shop located on that corner and came into the shop to a depth of four feet. There was also testimony that the water had been four feet deep at the northeast corner and according to one witness, at the northwest corner the water was up to his chest. At a point higher in elevation than appellant's shop, being two houses north of it on the upward grade of 57th Street, the water rose two-thirds...