Travelers Indem. Co. v. Wilkes County, 38394
| Decision Date | 12 September 1960 |
| Docket Number | No. 38394,No. 1,38394,1 |
| Parties | TRAVELERS INDEMNITY COMPANY v. WILKES COUNTY, etc |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. (a) The evidence creates a question for the jury as to the existence of a windstorm within the meaning of the policy sued on and whether such windstorm was the proximate cause of the damage in question.
(b) The exclusion in the policy of 'buildings * * * in the process of construction' is inapplicable to the building operations shown here, which are in the nature of repairs.
(c) The evidence does not support the verdict for the penalty for bad faith and attorney's fees. With this exception, the court did not err in overruling the general grounds of the motion for a new trial.
2. Under the facts presented here, the court did not abuse its discretion in denying the defendant's motion for a mistrial on the ground of improper remarks by the plaintiff's counsel in the presence of the jury.
3. Certain portions of the testimony objected to were relevant and admissible and the overruling of the objection to the testimony as a whole was not error.
4, 5. The remaining special grounds are without merit for the reasons stated in the opinion.
6. If the plaintiff will write off from the verdict and judgment the amounts recovered for bad faith and attorney's fees the judgment will be affirmed; otherwise it will be reversed.
The Wilkes County Board of Roads and Revenue filed its petition in the Superior Court of Wilkes County against The Travelers Indemnity Company, Inc., seeking to recover under a policy of windstorm insurance for damage to the Wilkes County courthouse plus damages for bad faith and attorney's fees. The case proceeded to trial before a jury, which returned a verdict in favor of the plaintiff for a pro rata share of the insurance coverage and damages for bad faith and attorney's fees. The court rendered judgment against the defendant and overruled its amended motion for a new trial, upon which ruling error is assigned.
Stephens, Fortson, Bentley & Griffin, Robert G. Stephens, Jr., Athens, Colley & Orr, Wilbur A. Orr, Jr., Washington, for plaintiff in error.
Walton Hardin, Washington, for defendant in error.
1. (a) The policy which is the subject of suit in this case provides that coverage 'is extended to include direct loss by windstorm.' In support of the general grounds of its motion for a new trial the defendant company argues that the evidence does not show a windstorm within the meaning of the policy. The term 'windstorm' is not defined in the policy. In such case a common definition of the term is 'a wind of sufficient violence to be capable of damaging the insured property, either by its own unaided action, or by projecting some object against it.' See in this connection McClelland v. Northwestern Fire etc. Ins. Co., 91 Ga.App. 640, 643, 86 S.E.2d 729.
The evidence indicates that the roof of the Wilkes County courthouse was destroyed by fire on December 24, 1958, and a temporary roof for the protection of the interior of the building was constructed a few days thereafter at about the level of the balcony in the upstairs courtroom; that on January 4, 1959, during a wind described by witnesses as 'blowing real hard' or 'right hard' or words of similar effect, the west wall of the courthouse broke 4 feet above the temporary roof and suffered at least a partial collapse; that this wall was constructed of solid brick masonry 12 inches think and had not been damaged by the fire; that the wind was of sufficient velocity to blow down limbs 'about like your arm or something like that' within two blocks of the courthouse. Under these circumstances we cannot say that the verdict of the jury is unsupported by any evidence of windstorm. Atlas Assurance Co. Ltd. v. Lies, 70 Ga.App. 162, 165, 27 S.E.2d 791.
It is further contended that the proximate cause of the damage in question was the weakening of the wall due to the effects of the recent roof fire. Assuming that the evidence does indicate that the portion of the wall above the temporary roof was not as strongly supported after the fire as before, there is no evidence sufficient to indicate as a matter of law any weakness sufficient to have caused its collapse in the absence of the wind, which the jury found to be the efficient cause of the damage sued for. 'In the absence of a specific provision in the policy to the contrary, it is generally sufficient, in order to recover upon a cyclone, tornado, or windstorm policy, to show that the cause designated therein was the efficient cause of the loss, although other causes contributed thereto.' 29A Am.Jur., 'Insurance', § 1329 p. 445. The policy contains several specific exclusions applicable to windstorm but none of these serve to limit the liability under the facts of the present case.
(b) It is also argued by the defendant that the evidence reveals that there is no liability under the terms of the policy excluding 'buildings * * * in the process of construction unless entirely enclosed and under roof with all outside doors and windows permanently in place.' When used in this sense the word 'construction' imports the building or erection of something which theretofore did not exist; the creation of something new rather than the repair or improvement of something already existing. 16A C.J.S., p. 1234. The building operations which were taking place at the courthouse during the time in question were simply intended to restore it to its original condition and are therefore in the nature of repairs. 'The word 'repair' contemplates an existing structure or thing which has become imperfect, and means to supply in the original existing structure that which is lost or destroyed, and thereby restore it to the condition in which it originally existed, as near as may be.' Childers v. Speer, 63 Ga.App. 848, 850, 12 S.E.2d 439. Accordingly, the policy exclusion is inapplicable to the building operations shown by the evidence.
(c) Finally, in passing on the general grounds, we will consider the question whether the verdict for attorney's fees and penalty for bad faith is supported by the evidence. Pace v. Pace, 154 Ga. 712(1), 115 S.E. 65. 'It has been repeatedly held by the Supreme Court and this court that where, in a suit on a contract of insurance, the legal questions...
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