*1 Mary Seligman) (Mary LaBris LaBris et al. Company, Western National Insurance 10179) (No.
Submitted January 1950. 1950. February Decided Lovins, President, dissenting part concurring part. Jenkins, E.
John for plaintiff in error. Gibson, Baker, Tom Marcum & for defendant in error. Judge: Riley, (Seligman) LaBris instituted in the Circuit
Mary Court County against her action assumpsit Cabell Western *2 National Insurance and Company Federal Insurance Com- under pany damages to recover windstorm indorsements fire insurance policies by attached issued defendant to the on her brick companies plaintiff two-story building Huntington. situated in the of City defendants pros- judgment ecute writ of error to a court this circuit $1,540.26 of in the amount based verdict. upon jury alleges The declaration that plaintiff is owner of a brick at two-story building business situated No. 747 City Third in the of that Huntington; Avenue the de- fendant insurance each issued to companies plaintiff the amount policy of fire insurance in of five thousand dollars, of fire covering lightning, with a peril each; windstorm indorsement attached to plaintiff $1,540.26, damages sustained in the amount of “caused 8, 1947; on damages windstorm” June sought of of represent cost the center repairing portion plain- which, tiff’s building, alleges, had as plaintiff of a day. the result windstorm on that occurring Both of policies insurance describe building “Two-Story as a brick building approved oc- cupied shop floor, for automobile and tire on repair first ** *.” storage on second floor The extended coverage indorsements this action provide was based “* * * the this coverage policy is extended to include * * Hail, by Windstorm, direct policies loss Both con- tain the that “Provisions provision Applicable Only Windstorm and Hail: This Company shall be liable (a) for directly indirectly loss caused frost or cold (b) snowstorm, wave, weather or tidal high water or overflow, whether driven wind or not.” 8, 1947, afternoon,
On June three o’clock about portion the center roof of next causing damage eastern wall thereof collapsed, $1,540.26. the cost of representing the amount repairs Defendants on interposed by way of defense the ex- tended coverage indorsements on the policies was caused to stoppage drainpipe thereon, which was located about the center the roof in a lengthwise direction, and next to the eastern wall thereof, which resulted in such an accumulation of rain water on the roof that the weight thereof caused the roof to collapse. This defense only raises the factual issue in case, primary question this writ of error is whether there is sufficient evidence for determi- jury nation that the damages resulted from windstorm dis- tinguished from water accumulating on the roof.
The evidence conflicts on the at the question whether time there was a high windstorm in the vicinity plain- building, tiff’s but that conflict of evidence does not of itself make determination, this case one for for specific question before us whether there is sufficient *3 evidence this record for the to find that a wind- storm was the direct cause of the damages sought to be recovered.
Various witnesses testified that at the time question there was a high windstorm in vicinity plain- the of the building. tiff’s Meredith B. Flesher that on July testified 10, 1946, engaged while in the metal roofing and sheet father, business with his he a new roof on put that .at building; that time he examined the structural of the part building to if it carry see would a new roof and found “It was in excellent the shape”; that placing roof organization 28,000 new his removed about pounds 1,100 of old roofing, it with replacing pounds roofing. The witness testified that on the the roof day damaged was there windstorm”; was that “terrible he had numerous town, calls “all off, over or roofs porches blowing and that in repairing”; his the about opinion high wind which he testified have “definitely” would contributed to damage together the to the the weight water. On examination that cross this witness testified the stud wall the around roof had buckled on the east of the building collapsed. side where the roof Virginia Anna Brown and plaintiff,
Two witnesses for damaged the next Chinn, lived in who of June at the on the afternoon testified that property, a high there was damaged, time was plaintiff’s property “I wind, thought my that windows testifying former off in in.”; ceiling that it tore some coming hall; through ga- the window of and that she looked The latter testified “stuff all over cars.” rage saw hard she blowing that on that occasion was so the wind at a engagement her to fill an was afraid to take child office. doctor’s Chatwell, for B. K. a witness testimony by
There is after the roof showing who took plaintiff, photographs from a that a limb had blown He testified collapse. Westmoreland, a distance of several tree at porch on his building. miles from Huntington at weather government report The official defendant, in evidence for June introduced time and 8 and the on June 7 midnight shows between fell; and that of rain the roof 2.83 inches a. m. and 5:45 velocity between 6:46 maximum wind miles an hour. This m. on June 8 was six seven p. o’clock 12:28 a. m. and 3:38 report shows between five the roof collapsed m. of the afternoon on which p. occurred, during the wind thunderstorms m., at 3:38 about thunderstorm, began p. last hour. miles an was six collapsed, time who County, of Cabell Robinson, H. sheriff deputy N. of Commerce to keep Department employed of a rain testified gauge fall with the use records of rain *4 on 6:00 m. p. hours between twenty-four that for the a recorded m., June there was 6:00 on p. June 7 and rain fall of 4.2 inches. defendants, John a for the witness, witness
Only one roofing of the' Miller, formerly employee who was roof, eyewit was an plaintiff’s which replaced company roof. He and his wife collapse to the actual ness floor of the on the third Grand a room occupying were Hotel, building which overlooked the roof plaintiff’s near that building. the center of the This witness testified he saw four the roof about o’clock the after noon during morning of June that the after and noon of at June the time the roof it more collapsed, was like water; than half covered that he heard noise throwing something against someone was the be wall tween the hotel plaintiff’s building; and and that when he opened the window and looked “that wall made a out lot of noise and it buckled out and buckled from this away side east and further testi in.” He collapsed [the side] fied that at that time the weather and nice” “pretty there nowas wind that on roof blowing; and the water immediately before the eighteen was about inches collapse, deep and covered feet of the one hundred sevent3r-five and fifty-foot length roof.
The printed record roof photographs contains taken in position. its collapsed photographs These were exhibited near jury, show roof in a direction, center lengthwise and next the east- ern wall plaintiff’s building.
. Partially testimony, corroborating Miller’s defendants’ witness, Glover, James walking W. testified that while along Third Avenue in front of building shortly after the roof he collapsed, noticed volumes of large water from flowing floor of first and across building thereof; sidewalk front that on into the looking garage he heard and saw water trucks and cars from falling above; the floor and that it or storming was not at raining time. Evidently, through water came the hole roof dripped ground floor. C. R. contractor, Neighborgall, who repaired after it collapsed, testified that the drain was located about center the roof away foot two from the wall; eastern brick and that from the north and south drain, sloped the roof to a only way which was the water could run off the unless went over the sides of the walls. This witness further the roof testified
736 any so constructed that it not hold considerable would
amount of water. evidence to
This record contains uncontradicted at the time clogged effect that the drain on the roof was and at the time shortly and that before collapse, there tons collapse thirty-eight forty-five were water the roof. detail the evidence stating portrayed further Without record, are the fact that there impressed we testimony is no in this case to show competent of a In of the roof was the result windstorm. collapse in favor of the opinion, predominates our evidence the accumu- theory that the occurred reason of collapse not of a lated water and because windstorm. With this record contains testimony, Miller’s exception testimony actually of no saw witness who Flesher, True, witnesses, the roof. M. B. including several testified July, who new roof on this put 8, 1947, and gave that there was a on June high wind have contributed “definitely” this wind would opinion and charac- quality of the roof. Of the same damage witness, ter as is that of defendants’ testimony Flesher’s Rinard, adjuster, investigated E. an insurance who R. claim, twenty-odd to the effect that from his plaintiff’s an examination adjuster, as an years’ experience damage roof disclosed no evidence windstorm; testimony of had caused and the been examination, witness, Brown, Anna on direct that, “Well, I floor of just ground noticed it [the know, have caved caved in on—You water must building] cars, Mr. Craft’s in, or caved it in on them something cars.” witnesses, none of these three testimony The opinion
.
to little
is entitled
expert,
of whom had
qualified
are en-
weight.
opinions
experts
“The
witnesses
are
regard,
they
supported
to little or no
unless
titled
them; but
on facts
warrant
reasons founded
which
good
founded, are
facts,
are
they
reasons and
if the
frivolous, the opinions of such witnesses are worth little
Kerr
nothing.”
Lunsford,
31 W. Va.
pt.
syl.,
*6
8 S. E.
To
493.
like effect see
Equitable
Boone v.
Holding
Co.,
896,
32
Supp.
F.
reversing
National Bank
Beckley
v.
Boone, 115 F.
513,
2d
denied,
certiorari
Boone v. Equitable
Co.,
558,
313
Holding
835,
U.
61
S.
S. Ct.
85 L. ed. 1519.
In
the
view of
facts
physical
disclosed
the photographs
in
(1)
evidence
showing
the roof was caved in next
to the eastern
of
wall
near
plaintiff’s building,
the center
of
roof,
the
and at the
where the evidence
place
discloses
the
located;
(2)
funnels,
drain was
that the air
ap-
in the
pearing
remained
after
photographs,
undisturbed
the
in
collapse, except
vicinity
the one
the
of the collapsed
of
part
the
which was caused to
in an easterly
bend
direction toward the
hole
the
the
sag
thereof
leading
wall,
toward the hole next to the eastern
and the
Miller,
uncontradicted
evidence
the
defendants’ witness
to
only eyewitness
collapse,
the
the
testimony
opinion
Flesher,
Brown,
the witnesses
Rinard and
it
based as
is
facts,
on no controlling
good
concrete
and not
sustained
reasons,
is
our conclusion
that the evidence in
case
this
aby
preponderance
does not
sustain
proof
case;
nor does it sustain
theory
the burden on plain-
tiff to
that a
prove
directly
windstorm proximately
damage
caused the
to
At
plaintiff’s property.
best
testimony
highly
of these
witnesses
opinion
non-expert
case,
ultimate
in the
conjectural,
involves the
issue
jury.
tends to invade the
Had it
ob-
province
been
to,
have been
Am.
jected
it would
inadmissible. See 20
782;
Jur., Evidence,
Barna v. Gleason Coal & Coke
Section
Cream,
158;
98 E.
Cavender v. Cline Ice
Co., 83W.
S.
Va.
862;
Snider,
3, 131 E.
Hancock v.
101
Co., 101
Va.
S.
W.
Co.,
131; Lively
133
v.
Virginian Railway
S. E.
W. Va.
McMullin,
v.
107
140 S. E.
and Collar
104 W. Va.
440,
In the case Walker witness, an eyewitness, not who was 1087, non-expert facts testify physical to as to competent held case, In building. fall of caused fell, witness was few minutes before observed indications of the and was impending collapse, on the premises and examined the building immediately In after it fell. 17 of the thereof point syllabus this Court “* * * held that the witness’ evidence opinion is admissible evidence, on the ground made impression, time, his mind at the is in the nature of a [the witness’] fact, and, physical ground the further of his obvious in- ability facts, to portray tending all of produce impression.” experience plaintiff’s wit- Flesher a roofer him to an give ness did qualify occurred reason of a opinion wind- storm; and, token, by the same of defend- experience adjuster ants’ witness Rinard as an did not him qualify give opinion to the effect that damage *7 fact, roof was caused a windstorm. In the latter’s testimony his examination of the roof did fact, not indicate to him any evidence that the damage, windstorm, had been caused is indeed of or no little value. The of opinion testimony these witnesses and that witness, Brown, indicated, of Anna as heretofore conjectural purely speculative. is In the recent case State, Rogers, the Use Stout v. pt. 132 W. Va. for 4 syl., 52 S. E. 2d this Court held: “The verdict of a in favor of a jury plaintiff, testimony based which does more than nothing grounds conjecture furnish for or spec- returned, ulation as to the verdict proper be cannot be justified, and will be set aside this Court.” having failed to establish plaintiff the burden of protective she was within the proof provisions coverage windstorm clauses of her policies, is our verdict her favor should opinion be set aside. retried, may Inasmuch as this case be we deem it ad- that attention visable be directed to the other grounds two (1) of error: that the trial court erred in giving plaintiff’s 2 objection; (2) instruction No. over defendants’ for overruling mistrial, defendants’ motion based on the remarks of counsel made during closing argument.
Plaintiff’s instruction No.
reads as follows:
“The Court
instructs
if
they be-
lieve and find from all of the evidence in this case
that the building of the plaintiff was damaged by
collapse of part of its roof and that such damage
would not have occurred except for the effect of
the windstorm
evidence,
as described in said
then
the defendants as insurers under
the policies of
insurance upon which this action is based are
liable and
for
responsible
such damage, even
though there may have been another cause which
may have contributed to the
collapse
said roof.”
This instruction is objectionable because, as heretofore
indicated,
the evidence is insufficient
to permit a jury to
find that
roof was proximately caused
aby windstorm. We think in addition that the instruction
confusing
inaptly drawn. While it is true that
accumulation of water on plaintiff’s roof does not come
within the exception contained in the riders to the two
policies,
exempting
insurer
from
for
liability
loss
* * *
* * *
caused
or
“directly
indirectly
(b)
high water
overflow,
whether driven by
not,”
wind or
nevertheless
that,
we think
in order for plaintiff to
case,
recover in this
wind must be an efficient cause of
loss,
and the qualify-
ing word “direct” in
referring
the cause of the loss
means “proximate or immediate.” 5 Appleman, Insurance
Practice,
Law and
3142;
Section
Trexler Lumber Co. v.
Allemannia Fire Insurance Co.
Pittsburgh, 289 Pa.
136 A.
Insurance Company
North America v. Lead
*8
er,
260,
121 Ga.
We motion motion for a mistrial. This was based fendants’ closing during counsel a remark of one of plaintiff’s are a valued policy “You argument jury: and final claim, are to you trying and then you holder until have had made A similar statement been company.” beat the closing counsel his the other of previously overruled de- The trial court objected to. argument, mistrial, jury for a and instructed motion fendants’ counsel. case is unlike This disregard the statement 884; and Graham, 119 191 S. E. State W. Va. State v. E. a defendant Gill, 132 S. which 101 W. Va. that it is difficult revolting a crime “so charged was to the one accused benefit jury give average for the remark of counsel which doubt.” reasonable based, highly improper, was for a mistrial was the motion view, however, of In jury. to prejudice and served and the trial court’s prompt case nature of the instant to the remark objection defendants’ sustaining action in it, any think that disregard we instructing en- jury may of the have members any prejudice remark of counsel prejudicial of the tertained because ruling and action their minds from obliterated thereon. trial court Circuit Court of Cabell judgment reverse We grant jury, verdict of aside the County, set trial. new defendants reversed; aside; set verdict
Judgment trial awarded. new *9 741 in dissenting part concurring Lovxns, President, in part:
I concur in the of the judgment case, reversal in this ground that it to give was error in- struction 2 over objection defendants; No. but I respectfully dissent from the reasoning that the evidence is to insufficient sustain the I 1 verdict. think point a syllabus states correct law, abstract principle but, in my it is to opinion, fallacious apply principle in case, evidence and, instant I doing, so is, think the effect, Court on the passing weight of the evidence credibility of witnesses.
It is the function of a court to consider and evaluate all the evidence to determine whether it legally is sufficient verdict, but, sustain the doing, so the evidence should not be so dissected and to give divided as each item thereof piecemeal consideration. I think case, evidence in this whole, a considered as is such than establishes more ground conjecture. for speculation and Plaintiff’s wit- nesses testified there was a windstorm of considerable force at the time collapsed, and it is rea- inference, sonable which the to draw, authorized it collapse. windstorm caused It will do to say that such inference wholly disproved by evi- defendants, dence for the so-called physical facts. A definition of comprehensive physical fact is as fol- “A lows: fact considered to have its seat in some inanimate or, being, being, virtue, if in not of the animate qualities by animate, which it is constituted but those in common has class of inanimate be- ings.” Ed., Black’s Law Third Dictionary, page 3 Revision, Dictionary, Bouvier’s Law Rawle’s Third page definition is 1 foregoing 2586. derived from Benth. Ev.,
Jud. 45. See On page also Burrill Circumstantial Evi- dence, Probably practical 130. a more definition page will Evidence, in The be found Modern Law Chamber- layne, wherein the author states: page “Classifying in general, they facts are within or according whether *10 observer, be divided they may body of
without of the observer knowledge of which the (1) physical, into senses; (2) psy- of the through 'perception comes and other phases emotions feelings, chological, comprising latter aware.” intuitively the mind which which seem loose expressions There have been some fact” “real evidence.” phrase “physical confuse to the sense object “addressed Real evidence is the inspection are for tribunal, objects presented as where ed., Evidence, Cases, Civil 3d page Jones jury.” applied very sparingly fact” rule is The “physical 8. Co., Transit 128 Va. Myers See W. the courts. Ry. Pac. Co. 281, 283; v. Canadian E. 2d Webster
37 S. (Mo. Louis Transit Co. A. Schmitt v. St. (Vt.), 156 421. 90 S. W. App.), Court rested this facts” alluded “physical of the damaged from a photograph made
its observations it the movement is considered building. But when applied, the force wind has been objects certainty any not disclose with thereof does photograph Furthermore, it is well object. of such condition and condi- location, course of movement known force, wind, or other natural moved objects tion natural artificial, definitely by determined laws. cannot be fact rule” “physical refrain from applying should We beyond peradventure, are established the facts unless the existence of such facts ob- as to testifying person in- time after the fact under them short within served or at issue occurred. quiry case of the witnesses testimony
I think the oral jury, of fact for determination an issue presented Court, in that the evidence and, therefore, holding that this an unsound insufficient, rests its conclusion basis. was error to However, give plaintiff’s I think that I 2, and for that reason would reverse No. instruction trial court. judgment