274 N.W. 569 | Neb. | 1937
This is an action at law prosecuted by the appellee (plaintiff below) against the appellant (defendant below), based upon the provisions of an insurance contract indemnifying against loss arising by reason of damages occasioned by lightning. A trial to a jury resulted in a verdict and judgment for plaintiff in the sum of $400. From the order of the trial court overruling its motion for a new trial, the defendant insurance company appeals.
The issuance of the policy by the defendant, the payment of the premium by the assured, and the identity cf the property damaged are not controverted.
The controlling question is whether the damages relied upon by plaintiff were occasioned by the direct effect of lightning, within the coverage stipulated by the terms of the policy. The defendant insists that the proof in the record is inadequate to establish that the damages sued for were the result of a stroke of lightning. On the 27th day of June, 1935, prior to an electrical and rain-storm, which occurred on that day, the property insured was in good condition, and had suffered none of the damages for which recovery is sought. This property is described in the policy as a “one story * * * frame building, including foundations, plumbing, electric wiring and stationary heating, lighting, * * * apparatus, * * * also all permanent fixtures * * * belonging to and constituting a part of said building,” etc., occupied by assured and situated on the premises described in the policy. There were two boilers situated in the basement that supplied heat to radiators situated within the building, and radiators situated in a greenhouse constituting a part of the property insured. These boilers communicated with a chimney built within the foundation walls of this building at the northwest corner thereof, and such chimney was approximately 45 feet in height. A six-inch steel sewer pipe carried the sewage of the building through the north wall and continued some ten or twelve feet, where it joined and emptied into a “clay” pipe of equal size which carried its contents to the city sewer located in the street adjacent thereto.
An employee of plaintiff testifies that he was sleeping-in the building insured on the night of June 26-27, 1935. About 1:30 a. m. he awoke, arose, and went out into the greenhouse and closed its ventilators or shutters for the protection of the growing plants. He then returned to his bed. He testifies that about-2:30 a. m. he heard a terrific crash; there was a flash of lightning; the whole house was shaking. He was jerked out of bed. As he was getting up
It is obvious that, if plaintiff’s witnesses are to be believed, a bolt of lightning was the cause of the situation disclosed by the evidence, and plaintiff would be entitled to recover under the terms of her policy. If we accord to plaintiff’s experts due credit, the fact remains that the record presents two questions of fact for the determination of a jury, viz.: (1) Was the property damaged by lightning? and (2) what is the amount to which plaintiff is entitled? Both questions were properly submitted to the trial jury, and the verdict returned finds ample support in the evidence.
It follows, therefore, that the judgment of the district court is correct, and it is
Affirmed.