237 F. 788 | 3rd Cir. | 1916
This is an action on a policy of tornado insurance. The jury rendered a verdict for the defendant upon the court’s construction of the contract, which was embodied in the charge with the force of a binding instruction. The plaintiff sued out this writ, assigning as error so much of the charge as relates to the interpretation of the contract.
The insured property was situate at Monmouth Beach, New Jersey. It was a frame dwelling built upon brick foundations. It stood close to the .ocean upon a low bluff arising from the beach. It was protected from the ocean by a bulkhead built fifty feet in front of it. This bulkhead was of timber, braced back into the land, and was about ten feet high. Connected with its two ends at right angles were “return bulkheads,” running back from the ocean one hundred feet to a point inland about midway the house, built to protect the house from the side wash of the sea. The space within this built-up box like structure was filled with sand and was used as a lawn.
At midnight of January 2, 1914, a great storm began, increasing in intensity and lasting three days. The wind, blowing on shore, grew _ to the force of a hurricane. )The storm was marked not only by wind of unusual velocity, but by unprecedented high tides. Ac
At the time of its destruction, the house was insured by the defendant insurance company under what is commonly known as a Standard Tornado Policy. By this policy, the insurance company insured the owner against “all direct loss or damage by windstorms, tornadoes, cyclones or hurricanes, except as hereinafter provided.” The risks excepted appear first in the following clause:
“This company shall not be liable for any loss or damage caused by hail, driven by wind or not, snowstorms, frost or cold weather; * * * nor for the loss or damage occasioned directly or indirectly by or through any fire, explosion, tidal wave, lightning, high waler, overflow, cloudburst; * * * nor for any consequential loss of any kind.”
The plaintiffs, in right of the insured, brought this action on the policy, upon the theory that the damage was occasioned by wind within the meaning of the general liability clause, and that the defendant is not saved by the clause exempting it from liability for damage caused by “high water,” under a proper definition of that term, contending “that if there was high ,water (contributing to the damage to the building), the proximate cause of the damage was not such high water, but the wind which made the water high, and that the court should have charged the jury to that effect.”
The court submitted to the jury the issue whether the damage was occasioned by wind or water, with appropriate instructions upon the law as to the defendant’s liability upon either finding. The first instruction relates to the company’s liability for damage caused by wind, under the issue fairly raised by the testimony of Lockwood as to whether the house was shaken down by the wind or was caused to fall by the action of the water washing away its foundations. This instruction is as follows:
“The plaintiff can only recover in this case after it has been established by the greater weight of the evidence * * * that the loss or damage to this house was the result of the direct action of this windstorm on the day in question.”
'No error, of course, is assigned to this instruction, for had the jury found that the damage had been done by wind, then the instruction fully covered the defendant’s liability. But the verdict for the
“I have determined that a proper construction of the policy precludes the plaintiff from recovering if the damage to this house was due, directly or indirectly, to high water, irrespective of whether the high water was caused by wind or not.”
The substance of the error charged to this instruction is, that under a proper construction of the contract of insurance, the defendant is liable for damage done by water when raised or driven by wind, and the jury should have been charged accordingly.
The plaintiffs’ case rests upon ’ their ability to take the cause of damage out of the clause of the policy exempting the company from diability, and place it in the clause imposing liability. To do this, they maintain that the words “high water,” as used in the exempting clause, mean high tide in its commonly accepted sense, indicating only such high water as is reached by the tide in its normal and periodical flow, unaffected by winds and storms, Howard v. Ingersoll, 13 How. (54 U. S.) 381, 423, 14 L. Ed. 189; that in the instant case the water was made high, not by normal tidal influences, but by wind, the element insured against, and that in driving the water against the foundations of' the house, the water was the passive and the wind the efficient force which proximately caused its destruction. They thus invoke the doctrine of proximate cause as applied in cases of insurance, Waters v. Merchants’ Ins. Co., 11 Pet. 213, 9 L. Ed. 691; Ætna Ins. Co. v. Boon, 95 U. S. 117, 24 L. Ed. 395; The G. R. Booth, 171 U. S. 450, 19 Sup. Ct. 9, 43 L. Ed. 234; Louisiana Mutual Ins. Co. v. Tweed, 7 Wall. 44, 19 L. Ed. 65; Queen Ins. Co. v. Hudnut, 8 Ind. App. 22, 35 N. E. 397; Jordan v. Iowa Mutual Tornado Ins. Co., 151 Iowa, 73, 130 N. W. 177, Ann. Cas. 1913A, 266; Mitchell v. Potomac Ins. Co., 183 U. S. 42, 22 Sup. Ct. 22, 46 L. Ed. 74; and ask a construction of the words “high water” as employed in the policy and a determination of which force occasioned the damage.
If the liability clause and the quoted clause of exceptions constitute the whole of the company’s undertaking, the inquiry as to the proximate cause of the damage, whether of wind or high tide, might be pertinent; but there is a second clause of exceptions, in which are included other elements with respect to which the company expressly refused to make itself liable. This clause is as follows:
“This company shall not be liable for any loss or damage caused by water or rain, whether driven by wind or not, unless tbe building insured * * * shall first sustain an actual damage to the roof or walls of the same by the direct force of the wind, and shall then be liable only for such damage as to the interior of the building * * * as may be caused by water or rain entering the building through the openings in the roofs or walls made by the direct action of the wind.”
As the jury found that the house was destroyed by water and as the contract denies liability for damage “caused by water, whether driven by wind or not,” the plaintiffs’ case, based upon the theory of.wind-driven water, comes within the second exempting clause and necessarily falls. We are of opinion that this clause dispenses with the. consideration of the question of proximate cause as raised in this case, and that the court’s construction of the contract as contained in the charge, was not erroneous.
The judgment below is affirmed.