Schaeffer v. Northern Assur. Co.

• Decision Date: 08 February 1944
• Docket Number: No. 26505.,26505.
• Citation: Schaeffer v. Northern Assur. Co., 177 S.W.2d 688 (Mo. App. 1944)
• Parties: SCHAEFFER v. NORTHERN ASSUR. CO., Limited.
• Court: Missouri Court of Appeals

177 S.W.2d 688

SCHAEFFER v.NORTHERN ASSUR. CO., Limited.

No. 26505.

St. Louis Court of Appeals. Missouri.

February 8, 1944.

Rehearing Denied February 29, 1944.

Appeal from St. Louis Circuit Court; William B. Flynn, Judge.

"Not to be reported in State Reports."

Action by Becky Theper against the Northern Assurance Company, Limited, to recover on a windstorm policy.From a judgment the plaintiff and defendant appealed, and, the plaintiff's death having been suggested in the appellate court, Eva Schaeffer, administratrix of the estate of Becky Theper, deceased, was substituted, and the cause was revived in the name of the administratrix.

Affirmed.

Noah Weinstein and B. Sherman Landau, both of St. Louis, for plaintiff.

Sievers & Reagan, of St. Louis, for defendant.

SUTTON, Commissioner.

This is an action brought by Becky Theper on a policy insuring her against direct loss or damage by windstorm, cyclone, or tornado, to a two-story brick building which she owned known as 5040 Northland Avenue, in the City of St. Louis.

The trial, with a jury, resulted in a verdict and judgment in favor of Becky Theper for $3,087.95.Both parties appealed.

The death of Becky Theper having been suggested in this court, on stipulation of defendant and Eva Schaeffer, Administratrix of the Estate of Becky Theper, deceased, the cause has been revived here in the name of said Eva Schaeffer as such administratrix.

The insured alleged in her petition that, on June 27, 1942, her building was damaged as the direct result of a windstorm.

Defendant assigns error here for the refusal of its instruction in the nature of a demurrer to the evidence.It puts its assignment on the ground that there is a total failure of proof that plaintiff sustained any direct loss by reason of a windstorm.

Plaintiff assigns error for the refusal of the insured's instruction submitting to the jury the issue as to whether or not she was entitled to damages and an attorney's fee for vexatious refusal to pay her loss.

Insured's building is what is known as a flat.It fronts north on Northland Avenue.It was built in 1923.Insured purchased the building and moved into it as soon as it was completed.She occupied the first floor at the time the building was damaged.Insured's daughter and her husband, Mr. and Mrs. Schaeffer, occupied the second floor.There was a tile roof on the building fifty-two feet long from north to south.The ridge of the roof ran north and south.The roof rested on brick gables at the north and south ends of the building and on the brick walls on the east and west sides.The eaves extended apparently a foot or two beyond the walls and brick gables.

About ten o'clock in the evening of Saturday, June 27, 1942, during a high wind the west side of the roof slid down about two feet.This was followed by a heavy rain which added to the damage caused by the sliding of the roof.

Insured showed, from the records of the United States Weather Bureau, located at 1114 Market Street, St. Louis, with its wind instruments located at 611Olive Street, on the roof of the Railway Exchange Building, that the maximum wind velocity, on June 25, 1942, was forty miles per hour, from the southeast, at 1:43 p. m.; that the maximum velocity on June 26th was thirty-one miles per hour, from the south, at 7:42 a. m.; and that the maximum velocity on June 27th was fourteen miles per hour, from the south, at 9:24 p. m.

Insured's building was located forty-four blocks west and twenty blocks north from the location of the wind instruments of the United States Weather Bureau.

Mrs. Schaeffer testified that, on Thursday, June 25th, about two o'clock in the afternoon, there was a "terrific windstorm, a terrific wind"; that "the wind just roared down"; that the high wind started between one and two and continued throughout the afternoon, and then about 7:30 the following morning there was another one that was "just terrific"; that she could "just hear the wind just pouring through, and again on Saturday night about 9:30"; that the high wind did not abate during the three-day period, starting Thursday and on through Saturday night; that the wind was highest between one and two on Thursday afternoon, early on Friday morning around eight, and on Saturday around 9:30 in the evening.

The witness further testified that she heard a cracking, tearing sound coming from the roof during the entire three-day period; that when the wind was at its highest the noises came more often, but did not at any time continually stop; that the cracking noises came at irregular intervals; that they would come from a half hour to hour intervals, and then there would be a lapse and they would start up all over again; that on Saturday night, June 27th, she heard those cracking noises through the early part of the evening, but around 10 or 10:30 that night there was a most terrific crash and parts of the roof, brick, plaster and wood came tumbling down into the house; that she at first thought the building had exploded.

The testimony of Mr. Schaeffer and the insured with respect to the windstorm and its effect was substantially the same as that of Mrs. Schaeffer.

The evidence shows that defendant denied liability shortly after the damage to the building occurred, on the ground that the damage to the building was not the result of a windstorm, and informed the insured that on that ground it refused to pay the loss.

There was testimony on the part of defendant that the roof was defectively constructed in that there were insufficient knee braces and collar beams and no bolts fastening the wall plates to the walls, so that the roof slid down of its own weight and not as the result of a windstorm.On the other hand, there was testimony for the insured that there was no defective construction, and that the sliding of the roof was caused by a windstorm.

The term "windstorm" has never been judicially defined in this state so far as we are advised.It is a simple term and is defined by Webster as "a storm characterized by high wind with little or no precipitation."The term as used in a policy of insurance such as that with which we are here concerned means a wind of unusual violence.It is something more than an ordinary gust of wind or current of air no matter how long continued.It need not have the violence or the twirling or whirling features of a cyclone or tornado, but it must assume the aspects of a storm, that is, an outburst of tumultuous force.Jordan v. Iowa Mut. Tornado Ins. Co., 151 Iowa 73, 130 N.W. 177, Ann. Cas.1913A, 266.

In the present case the evidence shows a high wind of unusual violence for a period of three days.On Thursday its highest velocity was forty miles per hour, on Friday thirty-one miles per hour, and on Saturday fourteen miles per hour, as shown by wind instruments on the roof of the Railway Exchange Building.Cracking noises from the roof of insured's building were heard throughout this period until the final crash evidencing the sliding of the roof.The evidence clearly warrants the finding that the sliding of the roof was directly caused by windstorm.

But defendant says that the peak of the wind velocity on Saturday was only fourteen miles per hour at about the time the roof slid, and that the action of the wind at that time was not such as to characterize it as a storm, and that it was not of sufficient violence at that time to cause the roof to slide, and if it did cause the roof to slide, the sliding was not caused by a windstorm.In this the defendant overlooks or ignores the violence of the wind on the two previous days and the cracking noises heard indicating that the roof was so damaged thereby that a wind of less violence was thereafter sufficient to cause the sliding of the roof.

Moreover, it is not conclusively established that the velocity of the wind in the locality of insured's building was not greater than fourteen miles per hour as shown by the wind instruments on the roof of the Railway Exchange Building.On the contrary, the testimony for insured, as we understand it, shows that in the locality of her building the wind blew with tremendous violence on the evening of June 27th as well as on the two previous days.

Defendant further says that since during the three-day period of high wind, the direction of the wind was from the south and southeast, it could not have affected the roof.We do not think this is so.It is not easy to anticipate or discern the action of a high wind, particularly when its course is obstructed by buildings.It does not always, in a particular locality, take a horizontal course or follow its general direction.It may take violent dips and upsurges.It may create vacuums and suctions greatly increasing its force and violence.When obstructed by the unyielding wall of a building, it is not stopped in its motion, but, seeking a way of escape, it whips around the building and races on with increased fury.Currents may strike off in directions very different from the general direction of the wind.If a vacuum is created at the wall or roof of a building, the pressure of the air from within may become very destructive.

Under the facts of the present case the issue as to whether or not there was a windstorm...