Opinion
28088.
DECIDED MARCH 14, 1940. REHEARING DENIED MARCH 29, 1940.
Complaint on fire policy; from Hall superior court — Judge Candler. September 23, 1939.
Smith, Smith Bloodworth, G. Fred Kelley, W. P. Whelchel, for plaintiff in error.
Powell, Goldstein, Frazer Murphy, Joseph H. Blackshear, Boyd Sloan, Wheeler Kenyon, contra.
MacDougald, Troutman Arkwright, as amici curiae.
This suit was for loss of a stock of merchandise insured by a policy of fire insurance. The evidence authorized a verdict for the insured, and it was not error to overrule the insurer's motion for new trial. There was no error in admission of evidence objected to.
DECIDED MARCH 14, 1940. REHEARING DENIED MARCH 29, 1940.
Mrs. J. C. Pruitt and Mrs. E. R. Barrett as surviving partners of the Pruitt-Barrett Hardware Company, a partnership, brought suit against the Atlantic Mutual Fire Insurance Company, to recover for loss of their stock of hardware alleged to have been caused by a fire, which loss it was alleged was covered by a policy of fire insurance issued by the defendant. It was alleged that the fire occurred during the life of the policy, that due and proper proofs of loss were furnished to the defendant and that the defendant denied liability and refused payment. It was also alleged that the stock of goods destroyed was of the value of $68,168.29, and that the policy sued on insured the goods against loss by fire to the extent of $5000. A copy of the policy was attached to the petition, and it appeared therefrom that the plaintiffs were insured "against all direct loss or damage by fire . . upon their stock of merchandise, consisting chiefly of hardware, agricultural implements, tinware, sash doors, sporting goods, etc., and such other merchandise, not more hazardous usual to the hardware trade," and that the insurance was "effected subject to the following conditions, which are hereby made warranties by the assured, and are accepted as part of this contract: . . this policy . . in no case to include loss or damage by cyclone, tornado or windstorm."
The defendant answered and admitted the issuance of the policy upon the plaintiffs' stock of goods in an amount not exceeding $5000, but denied liability for the loss or destruction thereof. It alleged that any fire which occurred on April 6, 1936, which was the date of this fire, was subsequent in time to substantial damage inflicted on the subject of insurance as a result of a tornado, and that it was not liable to the plaintiffs under the policy on account of any alleged loss or damage by fire to the subject of the insurance. The defendant further alleged that the policy sued on provided that "if the building or any part thereof fall, except as a result of fire, all insurance by this policy on such building or its contents shall immediately cease;" that before the occurrence of any fire on the premises described in the policy a tornado occurred "at, over and around the said premises, which said tornado . . then and there immediately caused a part of the building described in said policy to fall;" that the falling of the building or a part thereof was previous to the fire, and that under the terms of the policy sued on all insurance "immediately ceased upon the occurrence of said fall, and defendant is, therefore, not liable to the plaintiff on account of any alleged loss or damage by fire to the subject of insurance remaining after said storm damage."
The case proceeded to trial. It was stipulated and agreed between the parties that the policy sued on was issued by the defendant on October 2, 1935, and insured the merchandise in the store of the plaintiffs for one year; that the fire occurred on April 6, 1936; that the plaintiffs were the surviving partners of the assured partnership; that the insured property was the property of the assured partnership on April 6, 1936; that the policy contained the fallen-building clause quoted above in the defendant's answer; that proper proofs of loss were duly submitted by the plaintiffs; that as of midnight April 5, 1936, before any windstorm visited Gainesville, the stock of goods of the plaintiffs had a sound value of not less than $75,000; that the plaintiffs had complied with all requirements of the policy concerning protection of salvage; that the net sum realized from the salvaged merchandise was $5550.49; and that the plaintiffs were required by the terms of the policy to carry not less than $50,000 of fire insurance on the stock of goods, which they did carry.
The plaintiffs adduced substantially the following evidence: Mrs. E. R. Barrett, one of the plaintiffs, testified in part as follows: "On the morning of April 6, 1936, I was at my home. I recall the fact that a tornado visited Gainesville on that morning. Immediately after the tornado had passed over I came down town as near as I could get to it, . . the Pruitt-Barrett building. I saw it was burning. I didn't get to the building. I got to the corner of the Federal building up here as near as I could come, . . with my car. The Federal building is on one corner and diagonally across the street on the other corner was the hardware building, one block away. It continued to burn until the whole stock of goods was destroyed, except the stuff that was salvaged. . . It burned there several days. After the tornado had passed over, I got to town, I would say, in from ten to fifteen minutes." At the time of the fire the stock of merchandise was not up to the usual standard; it was diminished, as the hardware company had completed its spring business. "Two of the other members of the partnership were killed in the building, and Mrs. Pruitt and I are the only surviving members. . . Guy Barrett and John Rogers were actively in charge of the operation of the business from day to day. They stayed there all the time. There were six of our men killed in the building that I know and I don't know; I just don't know whether there were others or not. I have heard there were. Our books and records were burned in the same fire that destroyed the stock of goods." The Pruitt-Barrett hardware building was four stories high. "I could not say positively that half of it was blown away. It probably was down to the second story. . . When I got down here to this corner . . I saw for the first time that about half of the building was down . . and there was a fire burning in that wreckage. . . The Pruitt-Barrett Hardware Company employed a young man named Harold Head. He escaped from the building. So far as I know, he is the only occupant of the building that morning that escaped alive. . . They heated that building downstairs with a stove. The stove was located on the outside of the office on the Spring Street side of the building, to the rear of the office. It was a very large stove. . . It didn't have one of these metal jackets around it. The stove faced toward the aisle of the store in the front room. There were two rooms to the building downstairs. . . I remember the stovepipe ran up for a few joints. . . It ran up for some joints and then went across to the flue. The morning of the tornado it was cool enough to have a fire out home; I had a fire in my furnace. It was still cold enough to have heat in the building."
J. A. Anderson testified for the plaintiff, in part, as follows: "I was employed on April 6 by the Pruitt-Barrett Hardware Company as traveling salesman. . . It was around 12:20 . . when I got back [to Gainesville on the morning of the tornado]. I started down to the Pruitt-Barrett building, but I could not get down there. . . The building was burning from one end to the other. I had been working for Pruitt-Barrett Hardware Company since 1925." The witness then testified in detail as to his familiarity with and knowledge of the stock of merchandise carried in the store and which was destroyed and damaged on April 6, 1936. He testified as to the kind and nature of the merchandise kept on each floor of the building, and as to the location on the various floors of the different kinds of merchandise, such as sporting goods, farming implements, wire fencing, agricultural machines, automobile tires, cooking ranges and heaters, firearms and ammunition, fishing tackle, baseball uniforms, and other articles such as are usually carried by a general hardware store in a small city located in a farming community. The witness testified as to the location of the counters and other things on the first floor as well as in other parts of the building. He testified further: "The retail counters went back about the office. The whole thing down there was consumed by fire. The fire was burning when I got back here and it burned all the afternoon and all night, and they got some water on it Tuesday morning and got it under control where we could go to work in there. . . I think it burned everything that would burn. There were four stories in that building; as far as I know they were solid brick walls all the way up. I do not know what the roof was made of. Floors and ceilings were constructed of wood. . . I have been acquainted with this particular stock of goods from 1925 to 1936. From the standpoint of inventory value, this stock of goods was heavier on April 6, 1936, than it was when we took the last inventory in 1935. It was heavier because we had a late spring and we had lots of stuff that otherwise would have already been shipped out. That was one reason, and another reason, we bought heavier that year in anticipation of an advance in the market. . . I know where the stove was located. . . The stove that heated the building was on the first floor; we had merchandise around in the neighborhood of that stove. They had kegs of nails and kegs of nuts and washers stacked up pretty close around the bin there, around the stove; all that was open. That was part of the retail establishment. No wrapping paper or paper bags were kept back in that section of the store; nothing, only just what they use for the retail, which was kept there on the counter over the nails just below the stove. We did not sell paper bags and wrapping paper at retail, but that was the paper and paper bags used to wrap the parcels sold at retail. . . The Pruitt-Barrett building was down to about the level of the first floor; it was right above those windows in the building there. The wall on Spring Street, the north wall of the building, was just about ten or twelve feet high, and it went up above those little semicircular windows. It looked like all of the building, material and contents of the building, had just dumped right down inside of that wall. . . There was a plate-glass front to the building, with display places inside. . . The stove was setting around kind of behind the office, to the rear a little bit. . . It had no metal covering surrounding the fire bowl proper. . . As you went in the front door of the store and approached the stove the opening of the stove would face toward the right-hand side of the store. The ash-pit door was open at the bottom, opening out the same way as the fire door. . . The stove was made of cast iron. . . The stove pipe came out of the top of the stove. The pipe went up about two joints before it turned the corner as the stove was set up; then it went right diagonally across the office to a flue over in front of the office. . . The pipe was held in position up there by guy wires, from the ceiling. . . I testified that the stock of merchandise was more or less completely burned up, on direct examination. Assuming that the building collapsed from the tornado, in my opinion there would have been some stuff damaged by the collapse of the building. It would more than likely have broken some of the light bulbs. It might have broken some of the glassware in the cases. Damage to the aluminum ware would depend on how it fell, it was on the fourth floor. If it went on down through to the bottom, as to whether or not it would be damaged, mixed up in the brick and timbers, would depend on whether there was anything that supported it off of the pieces or not. . . I didn't see it. I would not think the ice-cream freezers would be damaged in the collapse of the building. Those freezers have a wooden bucket, and the freezer parts were inside of it. As to whether or not the screen windows would be damaged in the collapse of the building, in my opinion that would depend on whether something stuck through them. They were packed in . . heavy pasteboard cartons, and unless there was something that just drove through them, they would not be damaged from just a fall. The toy-wheel goods on the fourth floor would not be damaged in the collapse of the building, unless something stuck through them in the cartons. They could be mashed by the collapse of the building. Post-hole diggers could be damaged in the collapse of the building. I would not think bridles could be damaged, the way they are packed in cartons. . . Mowing machines might have been damaged some in the collapse of the building when stored on the second floor, with two floors coming in on top of them. The harrows were knocked down and constructed of steel. I imagine some churns and earthenware on the second floor got broke. Some of the plow handles would more than likely have been broken. I don't think the locks, the way they are packed in a heavy wooden case, would be damaged at all just from a fall. . . I did not see the heating stove on the first floor after they cleared away the wreckage after the fire was out." The substance of the witness's testimony, as regards the various articles of merchandise, was that there would have been some damage to some of the stock, but not to all of the stock of merchandise, from a fall of the walls of the building and the floors, depending upon where the merchandise fell from, what fell on top of the merchandise, and the nature of the merchandise. The witness testified further: "Everything in the building would not be damaged with the building collapsing from the top and the whole thing coming in a pile right down in the bottom on the ground. In my opinion, plow steel on the first floor would not be damaged the least bit. . . As to the fire damage, lots of them got so hot they melted and run together in bundles. . . Mr. Smith [attorney for the insurance company] examined me with reference to my opinion as to the damage that would be done to various articles of merchandise by the collapse of that building. I think there would be very little damage done to rubber belting. . . It is possible, it would not injure it at all. I would not think ammunition would be damaged at all, on account of the cases it was packed in. Constructed as that building was, . . if that building collapsed on the inside, I would think the presence of those floor joists and timbers and flooring would have a tendency to break the fall of the merchandise. I testified yesterday as to the manner in which hardware stock was packed and stored. In my opinion, the hardware cloth would not be damaged much by the collapse of the building unless something sharp was stuck through it." The witness testified as to various articles of merchandise, constituting the major portion of the merchandise in the store, that would not likely have been damaged much if at all by the collapse of the building alone.
Harold Head testified for the defendant, in part, as follows: "I was employed by the Pruitt-Barrett Hardware Company on April 6, 1936. I was at the store on the morning of April 6, 1936, when the tornado occurred. . . When I got there there was no fire in the stove there on the ground floor. . . It was lit shortly after I got there. . . When the lights went out I went out the back entrance of the office back to the elevator which was in the back of the store. I stayed there just long enough to find out the elevator would not run. I then went from the elevator back to the front door of the store. It was open at that time. . . After I left the front door and started back in the door I began walking down the middle of the building, . . and by the time I got to the edge of the office . . the tornado was on us. By the time I got to the front entrance to the office the plate glass blew out, and I knew the tornado had come and I went on in the office and I was afraid I was going to be cut with glass. I wanted to find something to get behind, and I thought if plate glass is going to fall the building might fall, and I grabbed the safe and leaned up against it, and the next thing I knew the building was falling in. I don't have any idea how many seconds elapsed between the time I was at the front entrance to that office and the time I leaned up against the safe. I did not stop or hesitate or do anything between the time I passed through the front entrance to the office and the time I got up against the safe. . . When I got to the front entrance to the office I heard the window blow out. When I got up next to the safe then the building collapsed. [The witness testified that it was about ten or twelve feet from the front gate of the office to the safe.] I knew right then the building fell in and I had to get out. I noticed that the building was on fire because I could smell the smoke and could hear it, after the building collapsed. I could not see the smoke and fire because I was behind the door of the safe between where the stove was and where I was. I could hear it. The direction the sound was coming from was toward the stove. I was out in less than five minutes. I didn't get burned. . . The stove, just before the falling of the building, was the hottest I have ever seen any stove, it was red hot, the whole stove was hot." The witness stated that he did not notice the stove until after the building collapsed, and that he did not notice any stovepipe on the floor down in the office. "I don't know what happened to the stove when the building fell in. I don't know whether the building crushed the stove or not. On that counter between the stove and the front door on the right-hand side of the store there was sporting goods, such as sweat shirts, baseball suits or uniforms made of cloth. They were spread out on top of the counter, loose. . . What I intended to testify to this jury about the stove and the pipe was that up until the time the front plate-glass windows were blown out that there was not anything wrong with the stove or the pipe except the excessively heated condition of it, so far as I know. After the plate-glass window was blown out I never did see the stove or the pipe either one after that. As to whether that same wind that blew the plate-glass window out blew the stove over and scattered fire all over the store, I don't know because it was dark. The inside of the store was noisy about the time that glass went out. . . If the stove had blown over I could not have heard it. . . I could not tell them [the jury] that fire was not scattered all over the store. There was a distinct interval of time between the time the plate-glass window blew out and the collapse of the building. There were two separate and distinct occurrences. There was plenty of time for that stove to have been blown over by the wind that carried out the plate-glass window before there was any collapse of the building. There was plenty of time for the merchandise of the store to be attacked by fire before any building collapse. So far as I know that could have happened. . . The first thing that I noticed after the building quit falling around me was that it was on fire, and if I didn't get out I was going to be burned. I smelled the smoke. I could not see the smoke. I could hear the crackle of flames. I could feel the heat of the fire before I got out of there. After I got out of there the first thing I did was to run to the fire department and get a fire hose. I was going to put out the fire if I could. . . It was less than fifteen minutes after the tornado passed over before I got that hose connected. . . I found I could not get any water. The fire had not gained any great volume by the time I left the building to go after the hose. By the time I got back up there it was a pretty big fire. I didn't notice fire in the building but one place. I did not stop to look and see how many places it was burning or smoking. . . I do not know whether or not any part of the building or any part of the merchandise in it was on fire prior to the collapse of the building. I did not see anything on fire prior to the collapse of the building. . . When I was back there around the stove there was merchandise in two or three feet of it. We had paper bags back there. I had a roll of paper that I used to wrap in shipping. . . It was near the stove. I didn't see any paper bags burning. I didn't see a thing burning until after I got out of the building, I could not see." Oscar Lilly testified for the plaintiff, in part, as follows: "My place of business was on April 6, 1936, . . located . . immediately across the street from Pruitt-Barrett Hardware building." The witness testified that upon the approach of the storm he and another got in the bank vault and closed the inner door. "We came out immediately after the storm had passed. It was not entirely light when we did come out. . . When I looked out it was not my impression the storm was completely over. Things were still moving a little bit outside. The first thing I did when I came out of the vault was to look out because the [my] principal interest was in Pruitt-Barretts'. I had a brother over there. He worked for Pruitt-Barrett. He was killed there in that building. . . When I got to that window I looked over toward Pruitt-Barrett and saw the building was down, up about ten or twelve feet, something like that, the part I could see, and I could see into the window directly across from where I was. I could see a fire burning under the debris and things in there. That window I am testifying about was located in the office of the Pruitt-Barrett Hardware Company where the office used to be. As nearly as I can estimate it in time after the tornado before I saw the fire in Pruitt-Barrett's, it was immediately after the storm had passed because we came out immediately. . . I should not think it would be over a half a minute."
Mrs. Sylvia Head testified for the plaintiff, in part, as follows: "I came to the door of J. D. Matthews and started back to Pruitt Barrett just the very minute that the wind had stopped after the storm; just as soon as the storm had passed on I ran to the front . . and when I reached the door I saw Pruitt-Barrett on fire, and my only thought was reaching there. I saw flames and smoke, but I can't tell you when I first saw the flames. I realized as soon as I reached the door of J. D. Matthews that it [Pruitt-Barrett] was on fire. . . It was less than a minute before I got to the front door of J. D. Matthews and could see the building on fire and did see it on fire. . . When I got over there Harold Head was down inside of this wreckage by the window. . . I saw a little blaze in there then. . . This blaze I saw with reference to this man's arm [Harold Head's] was back of him, a little one, and there was one to the front, over near the inside wall. . . This other place I saw fire was nearer the front of the store; . . then I saw the blaze beyond him back in the store, . . beyond and behind him was where I saw one fire, and to the right of me and near the wall is where I saw the other fire."
Walter C. Ham testified for the plaintiff, in part, as follows: "On the morning of April 6, I was in my office [which was directly opposite the Pruitt-Barrett building]; . . as soon as it was over I came back to my office and found it was torn up . . and I looked out of the window to Pruitt-Barrett Hardware Company. . . I saw the building had fallen down partly, and saw fire through the window in the office. I don't think it could have been over a minute or a minute and a half after the tornado passed over before I saw the fire through the window of the Pruitt-Barrett building." Dr. K. C. Maddox testified in part for the plaintiff: "The windows of my office . . faced right in the front door of Pruitt-Barrett Hardware Company. . . The first thing after the storm passed, the first impression was everything was torn down, and the building of Pruitt-Barrett was torn down and on fire. . . As soon as the storm was over and I turned I could see the Pruitt-Barrett building. It was on fire at that time. . . It was less than a minute after the tornado passed over before I saw the Pruitt-Barrett building burning."
Walter McEver testified for the plaintiff, in part: "When I did get down there I saw the fire, two blazes burning. The highest blaze was back toward the rear of the building and the other was up this side ten or fifteen feet. There were two distinct blazes burning. . . I didn't see any fire at any time. [The witness testified that he first saw the building before coming down on the street, and could see only a portion of the other.] And from three to five minutes after the storm, I came down on the street and saw the fire."
Page Lathem testified for the plaintiff, in part, that he was not in his office when the storm hit, but was in the back of the building which was across the street from the Pruitt-Barrett building and in the Gainesville National Bank building, and that as soon as the tornado was over he came down the hall of this office and looked out the window across toward the Pruitt-Barrett building. "From my office window I could see Pruitt-Barrett building. It had fallen in. I was up a little above it. There was a fire coming out. . . It was about ten or fifteen feet from where the window was, back there about where the wrapping table was in there. . . As I turned around I saw smoke up toward the front, but I didn't see fire there then. I didn't pay much attention, but I guess the fire I saw was twenty-five feet from the smoke I saw coming up toward the front."
J. H. Luther testified for the plaintiff as to the wind blowing things and persons about on the street, and as to blowing a man into the store where the witness worked, and as to blowing out the window glass and blowing the doors open and scattering the furniture in the store, which wind, he testified, was a minute or more before the tornado blew down the building directly across the street from his store. He testified on this point as follows: "In point of time, the wind that I have described as blowing the furniture about and blowing Mr. Rogers under the car and the man into our building and breaking his leg, those things happened before the Pilgrim-Estes building was blown down by the tornado." Q. "And how much time would you say there was between that wind and the wind that blew the Pilgrim-Estes building down?" A. "There must have been a minute or more." The witness testified that he went down the street to the Pilgrim-Estes building, and in this connection testified as follows: "I looked and saw the building was down and fire coming up back somewhere toward the back of the building. It could not have been over three minutes from the time the tornado passed over before I saw the Pruitt-Barrett building and saw the fire in it. It seemed, from what I could see of it, that the fire was back near the elevator, which was back towards the back of the building. I could also see other blazes in the building besides that one, towards the back and front, I could see that other one back there. There was a blaze some six or eight feet high, it seemed to be, and another blaze breaking through, and two or three places a volume of smoke boiling up through in different sections. The other place I could see fire breaking through was possibly eight or ten feet from the blaze that was already burning through. The other places where I could see smoke boiling up were some six or eight feet apart, scattered about in the store, some two or three of them." The witness testified that he had a stove in his store building with a fire in it about the same as the stove in the Pruitt-Barrett store, that the wind did not blow his stove down, nor did it blow down the pipes running from the stove to the elbow, from the elbow to the wall, some several joints.
Several other witnesses testified for the plaintiff to the effect that they saw the Pruitt-Barrett building immediately after the tornado had passed and saw that it was on fire. Some of them testified that the fire was of large proportions, with high flames leaping above the walls of the building left standing which were some ten to twelve or more feet high; and some of them testified as to the presence of fire and smoke in other sections of the building not immediately adjacent to the place in the building where the red hot stove was at the time the building collapsed. The testimony of these witnesses was very much the same as the testimony of the witnesses above referred to and quoted from.
There was other evidence tending to show the approximate value of the stock of goods which was in the store at the time of the storm and fire. There were also introduced blue prints showing the arrangement of the building as to the elevator and the office, and the location of the various kinds of merchandise on each floor of the building, which were testified to from the recollection of witnesses, and also a blue print as to the first-floor arrangement of the building, the location of the office and stove, the iron safe, the front door, etc. The jury returned a verdict for the plaintiff in the full amount of the policy, $5000. The defendant moved for a new trial on the general grounds and by amendment added certain special grounds, all of which were but amplifications of the general grounds, except one, relating to certain testimony of the witness J. A. Anderson. The judge overruled the motion and the defendant excepted.
The first contention of the insurance company, as stated by its counsel, is "that the evidence demands a verdict in favor of the defendant insurance company because it appears from the evidence and all proper inferences therefrom that the proximate cause of the loss and damage to the insured merchandise was a tornado, and that fire occurred in the wreckage immediately following the collapse of the building containing the insured stock of merchandise as the immediate, direct, proximate, and natural result of the destruction of the building by the tornado." The affirmative defense of the company is predicated on what is known as the fallen-building clause, contained in the policy sued on, to wit, "If the building or any part thereof fall except as the result of fire, all the insurance by this policy on such building or its contents shall immediately cease." Such a provision in a policy of insurance is valid. Nalley v. Hanover Fire Ins. Co., 56 Ga. App. 555 ( 193 S.E. 619); Smith v. AEtna Ins. Co., 58 Ga. App. 711 ( 199 S.E. 557).
The defendant contends that under this clause in the policy a verdict for the insurance company was demanded, because the uncontradicted evidence showed that a material and substantial part of the building containing the insured stock of merchandise was caused to fall by a tornado before any of the merchandise was afire. The defendant set up in its plea that the building containing the merchandise was destroyed by a tornado occurring before the fire, and that when the fire occurred the insurance on the building and its contents, including this stock of merchandise, had terminated, and hence it was not liable. The defendant states that all "the testimony introduced by it supports the truth of this affirmative defense, and all the testimony introduced by the plaintiffs is fully consistent with and supports the truth of this defense."
The burden of establishing this affirmative defense was on the defendant, although, of course, the plaintiffs had the burden of establishing a prima-facie case showing a loss of the merchandise by fire within the policy period. The plaintiffs contend that, under the evidence, the jury were not required to find that the fire occurred upon the collapse of the building or thereafter, but "that the testimony of the witnesses fully authorized the jury to find that the precedent wind which, according to the undisputed testimony of all the witnesses, actually occurred and was strong enough in force to blow out the plate-glass windows of this particular building, to blow people about on the streets, and to lift furniture from place to place in a furniture store, could and did cause the fire to escape from the stove by blowing the stove itself over, or blowing down the stovepipe or by its force and violence drawing the flames from the stove." They further contend that not only is this true, but the jury were authorized to find that the fire could have started by the wind blowing inflammable merchandise against the stove, and thence to other parts of the building. The plaintiffs stated that if the weighty mass of material, brick, and debris had fallen upon the stove upon the collapse of the building, as the defendant contends, and caused the fire to escape from the stove, that "there would have been no fire in the ruins of the building except possibly where the stove was located, which was near the office, because the weight of these materials upon the stove and about on the floor around the stove would likely have prevented any spread of the fire from that one location, and that there was evidence to show that almost immediately after the tornado had passed there was fire in more than one place, and other than near the spot where the stove was located, and that some of these scattered fires were burning briskly and with considerable headway a short time after the tornado."
Under the facts of this case this court can not hold as a matter of law that the evidence did not warrant an inference that there was a hostile fire present and in progress to some degree in the stock of merchandise and in the building before the wind blew the building down. Reference to the preceding statement of facts will disclose this to be true. The case of Hanover Fire Ins. Co. v. Pruitt, 59 Ga. App. 777, 779 ( 2 S.E.2d 123), certiorari denied, involved a verdict against another insurance company on account of the destruction of the same stock of goods involved in this case, and in which the identical tornado and fire were concerned. (It will be noted that the plaintiffs carried $50,000 of fire insurance on the stock of goods in their store, and that the policy now sued upon constituted only one-tenth part of this insurance.) The evidence in the record in that case and the evidence in the record in the case now before this court are not dissimilar but are largely identical. This court, in that case, in upholding a verdict for these plaintiffs against that company said: "The plaintiff in error says, in its brief, `There was no evidence to support the verdict for the plaintiffs and a finding that plaintiffs' stock of goods caught fire prior to the falling of a material portion of plaintiffs' building.' Did the burden rest upon the plaintiffs to show this fact, or was the burden on the defendant to show the converse, that is, that the building did not catch on fire until after it fell? An answer to this question decides this feature of the case. In the present case it is undisputed that there was a valid policy in effect insuring plaintiffs' stock of goods against loss by fire. It is also undisputed that plaintiffs' insured property was destroyed by fire. The condition in the policy that no liability under the policy was to exist in the event the building fell before the fire, was a condition subsequent [citing authorities]. . . `Again, a stipulation that "in case of the fall of the building, all insurance by this policy shall immediately cease" is a condition subsequent and not an exception, and the burden of showing that it became operative before loss is upon the insurer, especially where it is not in the descriptive part of the policy, but is among the provisos.' Couch Ency. Insurance Law, § 2246. It is said further in the same section: `In other words, when the plaintiff has made out a prima facie case the defendant has the burden of proving a defense thereto.' We think the plaintiffs made out a prima facie case when they introduced the policy sued on, which on its face was in effect, and showed a loss by fire, the amount of the loss, and proper demand and refusal. This proof fully measured up to the allegations contained in the petition and, nothing else appearing, would have entitled the plaintiffs to a verdict. The defendant pleaded a breach of a condition subsequent; the question therefore for determination is not whether the plaintiffs have shown that the fire began before the building fell, but whether the defendant has established that the building fell before the fire began. The burden, or the duty of going forward with the evidence, was upon the defendant to show the breach of this condition subsequent. . . The defendant has the burden of proving an affirmative defense, to wit, that the building fell before it caught on fire. We are not able to say that the evidence `conclusively shows that the collapse of the building, caused by the tornado, preceded the fire.' . . When the plaintiffs had introduced their evidence in this case, unless such evidence itself established the fact that the building fell before the fire started, they would be entitled to a verdict. We do not believe the evidence in this case, which was entirely circumstantial as to when the fire started, was sufficient to establish the defendant's contention that the building collapsed before the fire began. . . We think the evidence failed to preponderate to the theory that the building fell before the fire began, rather than to the theory that the fire caught from the stove which may have overturned before the fall of the building."
Furthermore, this court in Home Ins. Co. v. Palmour Hardware Co., 61 Ga. App. 868 ( 7 S.E.2d 816), recently followed Hanover Fire Ins. Co. v. Pruitt, supra, in which a similar situation and the same tornado were involved, and in which the issues and contentions were the same as those involved, in the case now before the court. Also see generally, Hartford Fire Ins. Co. v. Doll, 23 Fed. 2d, 443 (56 A.L.R. 1059); Davis v. Connecticut Fire Ins. Co., 158 Cal. 766 ( 112 P. 549, 32 L.R.A. (N.S.) 604); Western Assur. Co. v. Mohlman, 83 Fed. 811 (40 L.R.A. 561); Wiig v. Girard c. Ins. Co., 100 Neb. 271 ( 159 N.W. 416, L.R.A. 1917F, 1061).
Therefore this court in the present case does not agree with the defendant's counsel that the jury were not authorized under the evidence to find that a hostile fire had not been started in this building and in the stock of merchandise therein by the strong winds immediately preceding the tornado proper which caused the collapse of the building, and that the policy was therefore not in force at the time the fire began. The verdict of the jury finding for the plaintiffs is consistent with the evidence, and it is just as consistent with the theory of the defendant that the fire started after the collapse of the building and was probably caused by the falling building crushing the red hot stove thereupon igniting a fire in the debris around the stove. The jury were authorized to draw an inference from the evidence opposite to that contended for by the defendant, and one which is just as reasonable and just as consistent with the evidence.
The defendant states that the burden rested on the plaintiffs to proved by a preponderance of the evidence the amount of damage to the merchandise as a direct result of the fire, and that the plaintiffs would not be entitled to recover under this policy for the damage resulting from the tornado. Under the evidence, the jury were authorized to find that the damage to the stock of goods caused by the tornado itself and the falling building was negligible, and that the fire itself destroyed the bulk of the stock of merchandise, regardless of whether the fire began before the building fell, or began upon the fall of the building, as claimed by the defendant. The stock of goods was insured for $50,000. The amount of the policy of the defendant was $5000. The evidence was that the value of the stock of goods on hand in the store building at the time of the tornado and fire was considerably more than $50,000. The merchandise salvaged sold for $6449.64 and the expenses of preserving and selling amounted to $899.15, leaving a net salvage of $5550.49. The jury were authorized to find that the actual injury by the tornado itself, that is by the falling building, to the merchandise in the store, was very little and was insufficient to bring the monetary loss sustained by the plaintiffs by reason of the damage and destruction of the stock of merchandise, however caused, allowing for the value of that part salvaged, below $50,000. Therefore, there was evidence that the stock of goods was damaged by fire in an amount equal to or in excess of $50,000, and a verdict finding the insurance company liable for the full amount of the policy sued on, $5000, was not without evidence to support it. It follows that the evidence authorized a verdict for the plaintiffs.
In ground 6 of the amended motion for new trial the defendant assigns error on the propounding by the plaintiffs' counsel of the following question to the witness, J. A. Anderson, and the answer of the witness thereto: Q. "Constructed as that building was constructed, Mr. Anderson, with the floor joists and flooring, the support of the flooring as you have testified, if that building collapsed on the inside, would the presence of those floor joists and timbers and flooring have a tendency to break the fall of the merchandise?" A. "I would think so." Counsel for the defendant objected to this testimony on the ground that the question was leading and called for a "conclusion and speculation of this witness." The defendant "contends that this line of testimony constituted a direct invasion of the province of the jury," and "that even the jury would not be authorized under the law to guess or speculate without some evidence to afford a legal basis for an inference or conclusion." The witness had testified that he was an employee of the plaintiffs, and had been since 1925; that he was familiar with the merchandise carried in the store and with the location of such merchandise in the building. He further testified as to the location, at the time of the tornado and the fire, of the various articles of merchandise in the store, testifying as to what kind was kept on each of the floors of the building, how it was kept, whether it was heavy or light merchandise, whether it was merchandise that would be easily broken or damaged by a fall or not, and as to the manner in which the various articles were packed, wrapped, or cased. This witness further testified that there were four stories in the building, with solid brick walls all the way up, and that the floors and ceilings were constructed of wood and the floor and ceiling joists also were constructed of wood. He further testified, on cross-examination, that everything in the building would not be damaged with the floor collapsing from the top; that some named articles would be damaged and others would be damaged not at all, or but slightly. He likewise testified on direct examination, without objection, and gave his opinion as to the amount of damage likely to be caused by the collapse of the building to various articles of merchandise, having regard to the kind and nature thereof, and having regard to their location in the building. The opinion of the witness was based on facts testified to by him and was not a mere speculation. His conclusion was obvious. While the question was leading, the evidence was not harmful. The admission of this evidence was not error.
The judge did not err in overruling the motion for new trial.
Judgment affirmed. Sutton, J., concurs.
I concur in the judgment for the reason that the insurance company failed to carry its burden of showing that the building collapsed before the fire started. The evidence was entirely circumstantial. It was inconclusive and demanded a finding against the party having the burden of proving that the building collapsed before the fire started.