Sabatier Bros. v. Scottish Union & National Ins. Co.
| Decision Date | 22 January 1934 |
| Docket Number | 1272 |
| Citation | 152 So. 85 |
| Parties | SABATIER BROS. v. SCOTTISH UNION & NATIONAL INS. CO |
| Court | Court of Appeal of Louisiana — District of US |
Pujo Bell & Hardin and McCoy, Moss & King, all of Lake Charles for appellant.
St Clair Adams Jr., of New Orleans, for appellee.
A warehouse belonging to plaintiff was insured by defendant company against direct loss by windstorm, cyclone, and tornado.
The warehouse collapsed in January, 1932, and this suit is brought against defendant company for the recovery of $ 2,000 on the insurance policy.
The demand was rejected, and plaintiff appeals.
There is no claim made that the warehouse was blown down by a cyclone or tornado during the night of January 23, 1932, the contention being that it was destroyed by a windstorm.
This presents the sole issue.
The warehouse was situated in Elton, parish of Jefferson Davis.
Several witnesses, residents of Elton, and others who happened to be there on the night of the occurrence, testified in the case.
These witnesses say that the morning after the warehouse fell all the buildings in Elton were standing, no roofs, tin or shingles, had been affected by the wind, no windows or doors were broken, and that they saw no damage or injury to any house or building, nor was a fence blown down. There was, according to some witnesses, rattling of windows and doors, the upsetting or turning over of tubs and pans in the yards, and such like disturbances.
Mr. Sommer, one of plaintiff's witnesses, noticed the wind had broken a limb in his front yard, he reached out he says and pulled it down, stayed there for a minute or so, and went back in his house. His wife testifies that he asked her to go on the porch, but that she refused. Going through such performances does not indicate that a dangerous wind was blowing at the time.
Mr. Garbasino, another witness for plaintiff, testifies that the wind blew down a mulberry tree in size about eight inches around, but says this tree was half dead and was blown up by the roots.
The proof is there was a heavy rain accompanying the wind on that night, and it occurs to us that a tree in the condition above described would be susceptible of toppling over under a wind not characterized by unusual violence. This seems indicated by the fact that not a fence was blown down in Elton on that night, nor was a single roof of tin or shingles damaged in the least.
A windstorm is defined by Webster to be: "A storm characterized by high wind with little or no precipitation."
The proof herein shows that there was an extremely heavy rain that night; hence, according to the above-quoted definition from Webster, there was no windstorm blowing at that time.
In the case of Jordan v. Iowa Mutual Tornado Insurance Company, 151 Iowa 73, 130 N.W. 177, 178, Ann. Cas 1913A, 266, the court, in referring to a windstorm, says: ...
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...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. Th......
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