Sun Ins. Office, Limited v. Guest Camera Store, Inc., 40207
| Decision Date | 04 September 1963 |
| Docket Number | No. 3,No. 40207,40207,3 |
| Citation | 108 Ga.App. 339,132 S.E.2d 851 |
| Parties | SUN INSURANCE OFFICE, LTD. et al. v. GUEST CAMERA STORE, INC. et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. These cases are ones which may be brought to this court by a joint bill of exceptions.
2. It is the law of this State that here, as here, a building containing property insured against damage by windstorm has its roof opened by the wind projecting some object against the roof so as to permit the entry of rain which damages the property, the resulting damage is caused by the direct force of the wind and comes within the coverage of the policy.
3. The evidence supported the verdict.
The plaintiffs filed suit on four fire and extended coverage insurance policies issued by the defendant insurance companies on the contents of a building at 133 W. Clayton Street, Athens, Georgia, occupied by plaintiffs Guest Camera Store, Inc. and Guest Printing Company, Inc. Plaintiffs' losses were alleged to have been covered by the following provision in each of the policies, which the parties stipulated as being the only relevant section:
'In consideration of the premium for this coverage shown on the first page of this policy, and subject to provisions and stipulations (hereinafter referred to as 'provisions') herein and in the policy to which this Extended Coverage is attached, including riders and endorsements thereon, the coverage of this policy is extended to include direct loss by Windstorm, Hail, Explosion, Riot, Riot Attending a Strike, Civil Commotion, Aircraft, Vehicles and Smoke * * *
'Provisions Applicable Only to Windstorm and Hail: This Company shall not be liable for loss caused directly or indirectly by (a) frost or cold weather or (b) ice (other than hail), snow or sleet, whether driven by wind or not.
'This Company shall not be liable for loss to the interior of the building or the property covered therein caused, (a) by rain, snow, sand or dust, whether driven by wind or not, unless the building covered or containing the property covered shall first sustain an actual damage to roof or walls by the direct force of wind or hail and then shall be liable for loss to the interior of the building or the property covered therein as may be caused by rain, snow, snad or dust entering the building through opening in the roof or walls made by direct action of wind or hail or (b) by water from sprinkler equipment or other piping, unless such equipment or piping be damaged as a direct result of wind or hail.'
Plaintiffs alleged that the water damage to the insured property occurred on August 1, 1961 when, during a severe storm, the wind blew a fifty-pound wall cap from the rear wall onto the metal roof, thereby breaking holes in the roof through which rain entered. They also alleged that the wind lifted and strained the metal roof causing the seams to open from time to time to admit more rain water.
Defendants contend that the wind was not high enough to be designated as a windstorm or to have blown the wall cap from the wall onto the roof, that this would not have been by 'direct force of the wind' as provided in the policies and therefore that rain water entering through holes in the roof so caused would not be a peril insured against. They also contend that not enough water could have entered through the holes to cause the damage found and that the damage was caused instead by an overflow of the gutters which occurred because the downspouts were clogged with pigeon feathers and droppings caught in a wire trap, a peril not covered by the policy.
Defendants further contend that there was no evidence that the seams of the roof had opened during the storm.
The two cases were tried together by agreement of counsel and the jury returned a verdict for the full amount of damages claimed by the plaintiffs.
This appeal is brought by defendants from the action of the trial court in overruling two special demurrers, their motion for a new trial, and their motion for a judgment notwithstanding the verdict.
The parties have stipulated: the value of the water damage sustained by plaintiffs on August 1, 1931; a waiver of proof of loss; that defendants did not act in bad faith and should not be penalized for refusing to pay plaintiffs' claims; that each of the cases arose from the same occurrences; and that plaintiffs are not required to produce the insurance policies in court, the material portions of the policy being attached to plaintiffs' petitions.
Erwin, Birchmore & Epting, Howell C. Erwin, Jr., Athens, for plaintiff in error.
Joseph J. Gaines, Athens, for defendant in error.
1. Although the separate cases here, consolidated by agreement of all parties for the purpose of trial in the court below, have been brought to this court by a single bill of exceptions, it was decided in Scales v. Peevy, 103 Ga.App. 42(lb), 118 S.E.2d 193, that this court has jurisdiction. The Scales case on this point has been followed in Columbus Plumbing, Heating and Mill Supply Co. v. Home Federal Savings & Loan Association, 104 Ga.App. 36, 39(1), 121 S.E.2d 62, and in Turner v. Maryland Cas. Co., 104 Ga.App. 693, 694(1), 122 S.E.2d 479.
2. The defendant demurred to paragraph 8 of the petitions which alleged in substance that the wind blew a large tile wall cap weighing approximately 50 pounds with such force as to cause it to strike the roof of the building housing the insured contents and to break a hole through the roof permitting water to enter the building. The demurrer is based on the argument that the allegations concerning the cause of damage are insufficient to bring the occurrence within the coverage of the policy for the reason that they show that the tile cap, and not the wind, broke the hole in the rof through which the rain entered and therefore that 'the hole was not caused by the direct force of wind or hail.'
In the same vein, in the sole special ground of their motions for new trial the defendants contend that the trial court erred in its charge defining a windstorm as follows: 'I charge you that the term 'windstorm' is defined as a wind of sufficient violence to be capable of damage to the insured property, either by its own unaided action or by projecting some object against it.' They assert that the instruction misled the jury into believing that the policies covered losses caused by rain entering the building through holes in the roof occasioned by heavy tile being blown against the roof.
The defendants' theory in both their demurrer and their special ground is that these holes would be ones caused by the in-direct rather than the direct action of the wind and that any loss occasioned by indirect action of the wind is expressly excluded from the extended coverage afforded by the fire insurance policies. This court must determine, therefore, whether the pleading and the charge complained of are proper when viewed with the limiting language of the relevant exclusionary terms of the extended coverage provisions of the insurance policy. The material portion of the provision is:
'This Company shall not be liable for loss to the interior of the building or the property covered therein caused, (a) by rain, * * *, whether driven by wind or not, unless the building * * * containing the property covered shall first sustain an actual damage to roof or walls by the direct force of wind * * * and then shall be liable for loss to the * * * property covered therein as may be caused by rain * * * entering the building through openings in the roof or walls made by direct action of wind * * *' (Emphasis added.)
As we construe this qualification, the insurance company is not liable for rain damage other than that resulting from rain which enters through openings in the roof or walls of the building made by the direct action of wind. The policy contains no definition of wind or windstorm, and no provision excluding losses caused by the force of the wind projecting...
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