Travelers Indem. Co. v. McKillip, 4408
| Decision Date | 28 August 1970 |
| Docket Number | No. 4408,4408 |
| Citation | 458 S.W.2d 532 |
| Parties | The TRAVELERS INDEMNITY COMPANY, Appellant, v. Troy L. McKILLIP et ux., Appellees. |
| Court | Texas Court of Appeals |
Aubrey L. Roberts, Mays, Moore, Dickson & Roberts, Sweetwater, for appellant.
Turner & Seaberry, Eastland, for appellees.
Troy L. McKillip and wife brought suit against The Travelers Indemnity Company to recover on an insurance policy issued by the defendant insuring plaintiff's turkey barn against loss by windstorm but excluding damage caused by snowstorm. Plaintiffs alleged that they had sustained a loss caused by a windstorm on November 2, 1968. The defendant answered denying that the loss suffered by plaintiffs was occasioned by any peril covered by the policy of insurance sued upon and further alleged that a snowstorm on November 8, 1968, the day the structure fell, was the cause of plaintiffs' damage. The case was tried before a jury and based upon the verdict judgement was rendered for the plaintiffs in the sum of $7,450.00. The Travelers Indemnity Company, hereinafter referred to as Travelers, has appealed.
The record shows that appellee McKillip's turkey house was struck by a windstorm on November 2, 1968; that a snowstorm came on November 8, 1968, and that thereafter on the same day the turkey house collapsed. In answer to special issues submitted the jury found that (1) appellee's turkey house was damaged by a windstorm on November 2, 1968, (2) that such windstorm was the dominant efficient cause of the collapse of appellee's barn, although other causes may have contributed thereto, (3) that the fair market value of the building in question immediately prior to the windstorm was $11,400, (4) that the fair market value of the building after the windstorm was $2,000, (5) that the fair market value of the building immediately after it collapsed on November 8, 1968, was $2,000, (6) that the reasonable and necessary cost to repair or replace appellee's building after the windstorm of November 2, 1968 with material of like kind and quality within a reasonable time after the loss was $7,500, (7) that the reasonable and necessary cost to repair and replace appellee's building after its collapse on November 8, 1968, with material of like kind and quality within a reasonable time after the loss was $7,500, (8) that the damage to appellee's said building 'was directly caused by windstorm' and (9) that the damage to the building was not caused solely by the weight of the snow thereon.
As heretofore noted the jury found in answer to special issues 1, 2, 8 and 9 that appellees' turkey house was damaged by the windstorm of November 2nd, that such windstorm was the dominant efficient cause of the collapse of the building on November 8, 1968, that the damage to the structure was directly caused by the windstorm and that the damage was not caused solely by the weight of the snow. In several points appellant contends that such answers are not supported by any evidence; that the evidence is insufficient to support such answers, and that they are against the great weight and preponderance of the evidence. In our opinion there was ample evidence to support such jury findings. Appellant's points urging to the contrary are overruled.
The record shows that appellees live on a turkey farm about one and a half miles southeast of Desdemona. It is undisputed that there was a windstorm on November 2, 1968 which took a definite path across appellees' property. The storm entered the northwest portion of appellees' property where Texas Electric Service Company and the REA had poles located slightly northwest of appellees' turkey house, hereafter referred to as building number 1. The path of the storm passed over and across building 1 and then proceeded in a southeasterly direction over appellees' home and yard and between two other poultry houses, referred to as buildings 2 and 3. The force of the wind pushed the Texas Electric pole to the southeast. The REA pole was guyed so as to prevent movement to the southeast. The TV antenna at plaintiffs' home was twisted. Steel posts around the yard enclosure were bent flat and telephone service to the house was disrupted. Tree limbs as big as a man's leg were broken off and blown 100 to 150 feet away, and an electric line about the size of a man's little finger running between buildings 2 and 3 was broken. There was no snow accompanying the windstorm.
The evidence supports the conclusion that the windstorm in question damaged appellees' number 1 poultry building but that it passed between and did not injure their poultry buildings 2 and 3. Buildings 1 and 2 were built from the same general plan using steel trusses, known as econ-a-frames, and were almost identical except as to length and roof support. Both were sheet metal buildings with cellotex insulation under the sheetiron on the walls. Building 1 also had cellotex under the sheetiron on the roof. Building 1 was 408 feet long by 40 feet wide and building 2 was the same width but 40 or 50 feet less in length. Building 1 had more than twice as many purlins as building 2, the spacing between them being 2 feet on building 1 and 4 feet on building 2. The roof on building 1 should have been stronger than building 2. Building 2 had 20,000 pounds of equipment suspended from the purlins while building 1 had no suspended weight although it did have an equivalent weight of cellotex insulation under the sheetiron roof. Building 2 was not damaged by the windstorm nor was it damaged by the snow. Building 3 was an old rebuilt wooden building without the steel support of buildings 1 and 2, and was not as substantial a building as building number 2. Building 3 also had 20,000 pounds of weight suspended from the roof or ceiling and it likewise was not damaged by either the windstorm or the snow.
As heretofore noted the snow of November 8, 1968, was only 4 or 5 inches. There was evidence to the effect that buildings 1, 2 and 3 had theretofore been exposed to a heavier snow including one storm with two inches of ice and 4 to 6 inches of snow. None of the buildings had been damaged thereby. Appellant's expert witness, Parrish, testified that 5 inches of extremely wet snow would weigh about 12 pounds per square foot, that ice would weigh twice as much, and that 5 inches of light snow would weigh 1 1/4 pounds per square foot. There was no evidence to show whether the snow of ...
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Travelers Indemnity Co. v. McKillip
...After a trial to a jury, respondents were awarded a recovery for $7,450. This judgment was affirmed by the Court of Civil Appeals. 458 S.W.2d 532. We reverse the judgments of the courts below, and remand the cause for a new The insureds were the owners of a turkey farm in Eastland County, w......