Summary
finding no competent evidence that plaintiff's damage was due to windstorm and thus, it was not recoverable under plaintiff's extended coverage policy which covered loss by windstorm, hail, explosion, riot, riot attending a strike, civil commotion, aircraft, vehicles, and smoke
Summary of this case from Villa Sonoma Perimeter Summit Condo. Ass'n v. MainorOpinion
42764.
ARGUED MAY 2, 1967.
DECIDED MAY 19, 1967. REHEARING DENIED JUNE 1, 1967.
Action on insurance policy. McDuffie Superior Court. Before Judge Stevens.
Robert E. Knox, Fulcher, Fulcher, Hagler, Harper Reed, W. M. Fulcher, for appellant.
Randall Evans, Jr., for appellee.
In an action on an insurance policy to recover damages allegedly caused by windstorm a recovery is not authorized where the proof does not show that damage was not caused by wind of less velocity, force and turbulence than the definition of windstorm herein stated requires.
ARGUED MAY 2, 1967 — DECIDED MAY 19, 1967 — REHEARING DENIED JUNE 1, 1967 — CERT. APPLIED FOR.
W. L. Davis, d/b/a Community Locker Plant sued General Insurance Company of America for alleged damage to his building resulting from a cause insured against in an insurance policy issued by the company to the plaintiff. The petition alleged that the policy provided insurance protection for damage to the roof and walls of plaintiff's building "by force of wind" and for damages to the interior of the building and its contents which occurred between 6:30 and 10:30 p. m. on February 7, 1965. The petition alleged that there were four vents on each side of the building and four outlet vents in the top, and that wind entered through the vents on the sides of the building with such great force that it caused the interior of the roof and the building to collapse. The case ended in a mistrial and the insurance company appeals from the judgment overruling the company's motion for a judgment notwithstanding the mistrial. Other enumerations of error need not be considered in view of our reversal of the above stated judgment. The policy provided: "In consideration of extended coverage premium . . . the coverage of this policy is extended to include direct loss by windstorm, hail, explosion, riot, riot attending a strike, civil commotion, aircraft, vehicles, and smoke." The evidence relating to the character and velocity of the wind in the area during the period in which the damage occurred is as follows: Wesley Brannon, a police officer of Thomson, Ga., whose hours of duty were from 4 in the afternoon until 4 in the morning testified that he recalled that during that afternoon there was some wind; that it was strong enough for him to remember; that it was about dark; that he could not tell the jury how much force there was and that he just recalled the wind's blowing up some dust a time or two; that the thickness of the dust was not too bad; that he remembered the trash's and dust's blowing up once or twice; that it was not a storm; that you would see such dust a dozen or two times a year; that it wasn't creating any great stir of trash, just a slight blowing of wind and then it would settle down; that the time he referred to was when witness was near Mr. Knox's house; that the wind at times blows harder at plaintiff's freezer locker plant (the insured property) than it does at other places; that he didn't know whether there was a cyclone at the plaintiff's place that night. We have omitted the statements of some witnesses which showed that the witnesses had no recollection about the character of the wind on the night involved. E. R. Mehaffey, the meteorologist in charge of the weather bureau at Bush Field in Augusta, was called as a witness by appellant and testified as follows: "Q. What do your duties consist of? A. One of the main duties is taking observation daily, 24 hours a day, 365 days a year. Q. Do you have there a record of any of the climatological data during the period of February 7, 1965? A. Yes sir, I have. Q. Would you refer to the page in that record and tell the jury what your record shows as to the wind velocity between the hours of 11 a. m. and 11 p. m. on February 7, 1965? A. For each hour or for each observation or what? Q. Just — if you have a recording there of the reading of the wind. A. At 10:50 a. m. the wind velocity was 9 knots or 10 miles per hour; at 11:58 the velocity 7 knots, 8 miles per hour; at 1 p. m. or 12:58 p. m. — our time is used as a 24-hour clock — 7 miles per hour — correction, 8 miles per hour, 7 knots; at 13:58 or 2 p. m. 9 knots, 10 miles per hour; at 14:56 p. m. 7 knots, 8 miles per hour; at 15:58, 10 knots or 12 miles per hour; at 16:58, 10 knots or 12 miles per hour; at 17:35 a special observation was taken, the wind at that time was 8 knots, 9 miles per hour; at 17:58 the wind was 5 knots, 6 miles per hour; at 18:58 the wind 4 knots, 5 miles per hour; at 19:58 the wind velocity was 6 knots, 7 miles per hour; at 20:58 or 9 p. m., 6 knots, 7 miles per hour; at 21:58 or 9:58 p. m., 3 knots, 3 miles per hour. Q. At 17:58 on your records there, what time would that be by our clock? A. That is 5:58 p. m.; subtract 12 hours from the 17. Q. And, what was the wind velocity at the time you took that reading? A. 17:58 was 5 knots, 6 miles per hour. Q. And, what time of the day is 18:58? A. 18:58 is 6:58 p. m. Q. What was the reading at that time? A. 4 knots, 4 miles per hour. Q. 19:58 is what time of day? A. 7:58. Q. What was the reading at that time? A. At 19:58 it was 6 knots, 7 miles per hour. Q. And, what time of the day is 20:58? A. 6 knots, 7 miles per hour. Q. What time of day is that? A. That is 8 p. m. — 8:58." On cross examination he testified: "Q. Mr. Mehaffey, don't you know that they give the reading at Bush Field that they've taken from you folks and then tell what it is up on the — downtown in Augusta? A. I am aware of that. Q. And other places in Augusta? A. I am aware that they do use a downtown reading; I cannot say for sure where. . . Q. And, they are different, too, almost always, to some extent, aren't they? A. To some extent they are different. Q. Temperature and wind velocity — now that was 7 or 8 miles away? A. There's more difference in temperature, ordinarily, than wind. Q. Now, when you get 35 miles away up to Thomson, how much difference could there have been to what you've got — reading there? A. It would be difficult to say without a surface map. Q. It could have been a terribly strong wind up at Thomson without your having any record of it, could it not? A. Just how strong would you mean there? Q. Well, what does it take to be a strong wind? In velocity, what do you all consider to be a strong wind? A. For aviation purposes around 30 knots. About 34 miles per hour. Q. About 34 miles per hour? A. Yes sir. Q. Now, how. . . A. Upon those conditions we usually issue wind warnings to local interests. Q. How fast does it take the wind to be a hurricane? A. A hurricane — 75 miles per hour. Q. 75 miles? Or knots? A. Miles. Q. Miles per hour? A. Yes, sir. Q. And a gale? A. And a gale? A. I'm not sure of a gale, but I believe that is in the 30 mile-per-hour bracket. 35, 36, somewhere along in that. . . Q. Alright, sir, now. . . A. A whole gale is in between." On re-direct examination the witness testified: "Q. Mr. Mehaffey, is there anything in your records to indicate on that particular date the readings wouldn't be any different in Thomson as they are here in Augusta at Bush Field? A. No sir. Q. Do you have a local weather correspondent or contact where — from which source you get the information as to disturbances in turbulence and unusual matters? A. In Thomson you mean, sir? Q. Yes. A. The Highway Patrol is — cooperates with us here. Q. Well, explain to. . . A. At this time — whether they did then at that particular time I cannot say. Q. Well, will you explain to the court and jury just how that operates and what contacts you have with local people and whether any phenomenons are reported to you if they occurred in Thomson, Georgia? A. If there was severe weather expected in this particular area, there would be a forecast issued instituted either by Kansas City, which is the National Severe Storm Warning Center, relayed to us on a teletype circuit; and, then we, in turn, would relay it to the Highway Patrol near Thomson for distribution to county seats. Q. Would that information relate to McDuffie County? A. It should be related to all county seats on this side of the Central Savannah River Area, which we have that area of county responsible. And, McDuffie County is included in that. Q. Well, Mr. Mehaffey, on the basis of your experience and familiarity with those records, state whether or not it would be your opinion that there would have been any difference — any substantial difference — between the velocity of wind at Thomson, Georgia, and Bush Rield on February 7, 1965? A. There would not have been enough substantial difference to have warranted the issuance of any sort of a severe weather warning or anything of that nature. Q. And, there's no record of any severe weather warning. . . A. And, to my knowledge, there is no record of any severe weather warning being issued for that particular day." The records of the weather bureau at Bush Field were identified by the witness, Mehaffey, and introduced in evidence. William Muns, an employee of the Georgia Forestry Commission, stationed about two miles west of Thomson and in charge of the station on Warrenton Highway was called by appellant and testified: "Q. As part of the duties and activities of that station, do you or not take wind velocities from time to time? A. Yes sir. Q. Do your records indicate whether or not you took any such wind velocities on February 7, 1965? A. Yes sir. Q. When is the first record of your — when was the first record made? A. 11 a. m. Q. 11 a. m.? A. Yes sir. Q. 11 o'clock in the morning? A. Yes sir. Q. What was the velocity of the wind at that point at 11 o'clock a. m. on the morning of February 7, 1965? A. 3 miles per hour. Q. 3 miles per hour? A. Yes sir. Q. When was the next time that you took a reading on the wind velocity? A. 1 p. m. Q. That was right after noon? A. Yes sir. Q. And, what was the wind velocity at that time? A. 4, sir. Q. 4 miles per hour? A. Yes sir. Q. And, then, did you take any other. . . A. Took one at four, sir, 4 p. m. Q. What was the wind velocity at that time? A. 3, sir. Q. Is that 3 miles per hour? A. Yes sir. Q. And, the record that you're testifying from, is that an official record that's kept there at your station? A. Yes, sir. Q. Were any other tests of wind velocity made at any other time during that day? A. No, sir, we read it three times a day, at these given times. Q. And, those are the readings you took on that day? A. Yes, sir." On cross examination he testified: "Q. William, about when — tornado winds last about 15 or 20 minutes, doesn't it? Approximately, not an hour, not 30 minutes, but usually it's over and done within five, ten, or fifteen minutes? A. In certain — at one spot it is. Q. The ones that we have around here — they come through and do a lot of damage sometimes but they're gone in five, ten or fifteen minutes, aren't they? A. Yes sir. Q. So, a reading from 11 to 1 could allow several tornadoes in between then and still the air be back to normal after the tornado is gone — sometime it gets very still after the cyclone or tornado doesn't it? A. Yes, sir. Q. And, from one to four, that would be three hours, so, then, several storm winds in that time could have been without your recording it, couldn't it? A. Yes sir. Q. Nothing wrong with finding three-mile-per-hour at 11, 4 miles per hour at 1, 3 miles per hour at 4, and having had high winds in between, is it? Even a tornado? A. That's very possible. Q. And, then, from four o'clock till about 9:30 or 9:45, when Mr. Davis found it, would be 5 hours and 45 minutes, you didn't have any recording at all during that time, did you? A. No, sir."
The hazard insured against in the insurance policy in this case is direct damage by windstorm. "Windstorm" is not defined in the policy and various courts have applied a definition where the policy gives none. That definition, as combined from several foreign cases, is generally and substantially: "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; that is to say, that any wind that is of such extraordinary force and violence as to thereby injuriously disturb the ordinary condition of the things insured, is tumultuous in character, and is to be deemed a windstorm within the purview of the policy in absence of a provision therein to the contrary." Adams Apple Prod. Corp. v. National Union Fire Ins. Co. of Pittsburgh, 170 Pa. Super. 269 (2, 3) ( 85 A.2d 702); Gerhard v. Travelers Fire Ins. Co., 246 Wis. 625 ( 18 N.W.2d 336, 337); Fidelity-Phenix Fire Ins. Co. of N. Y. v. Board of Education of Town of Rosedale, 201 Okl. 250 ( 204 P.2d 982, 985). In this case there is no competent evidence, either direct or circumstantial, sufficient to support a finding that the plaintiff's damage was caused directly or indirectly by a windstorm. The evidence shows only a gusty wind capable of blowing trash and leaves. There is nothing tending to show a wind with enough force and velocity to measure up to the above definition of "windstorm." The contention that the policy would cover any damage alleged if there was any wind sufficient to cause it whether there was a windstorm or not is without merit. If this is true, the construction of "windstorm" is stretched beyond the fair interpretation of the word and the contract is converted into a mere "wind" policy. See the special concurrence in McClelland v. Northwestern Fire c. Co., 91 Ga. App. 640, 643 ( 86 S.E.2d 729). Assuming, for the sake of argument, that the damage was done because cool air entered the vents in the top of the building, mixed with the warm air inside and caused a "combustion" which, in turn, directly caused the damage, it was not shown that the "combustion" would not have resulted from wind of lesser velocity and turbulence than that accompanying a windstorm. The same would be true even though there were five vents on one side of the building and four on the other. Since there was no evidence that the damage was caused by windstorm, the coverage of the policy against damage from a windstorm could not be involved and applied. The ruling in Guest Printing Co. v. American Ins. Co., 222 Ga. 674 ( 151 S.E.2d 717), contains nothing in conflict with the ruling herein made. The point discussed in that case would not be reached unless the evidence authorized a finding that there was a windstorm. Then the question would arise as to whether the cause of the damage was the windstorm or a poorly erected ceiling, etc. Any ruling, express or implied, in Stephens v. Cotton States Mut. Ins. Co., 104 Ga. App. 431 ( 121 S.E.2d 838) to the effect that a recovery for windstorm damage may be had upon proof of just any kind of wind capable of doing the damage alleged, whether measuring up to the definition of a windstorm or not, will not be followed since such a ruling was obiter because the evidence showed a wind measuring up to the correct definition of a windstorm. Travelers Indem. Co. v. Wilkes County, 102 Ga. App. 362 ( 116 S.E.2d 314); Sun Ins. Office, Ltd. v. Guest Camera Store, Inc., 108 Ga. App. 339 ( 132 S.E.2d 851) and cases cited.
In Williams v. Detroit Fire c. Ins. Co., 280 Mich. 215 ( 273 NW 452) the court defined "windstorm" as follows: "`The word or expression "windstorm" is to be distinguished from the word "wind." The word is defined as a storm characterized by high wind with little or no precipitation. As used in the policies in suit it should be considered as something more than an ordinary gust of wind, no matter how prolonged and it takes its meaning, measurably at least, from the other words with which it is associated, that is, tornado and cyclone, but it need not have either the cyclonic or the twirling or whirling features which usually accompany tornadoes or cyclones; but it must be more than an ordinary current of air no matter how long continued. In other words, it must assume the aspect of a storm that is an outburst of tumultuous force, and unless the plaintiff has shown that the damage to this building was caused by a windstorm, by a preponderance of the evidence, that is, by evidence that is more convincing to you than the other evidence, then your verdict must be for the defendant.'" This definition was again approved in Cree Coach Co. v. Wolverine Ins. Co., 366 Mich. 449 ( 115 N.W.2d 400). See 93 ALR2d 148, where it is editorially stated: "In any action to recover under a windstorm policy the first question is necessarily whether a windstorm within the meaning of that word as used in the policy took place. The resolution of this question is not without difficulty . . . and there are somewhat conflicting views as to what proof is necessary in order to establish that the wind alleged to have been the casual agent of the damage was in fact a windstorm." See §§ 2-7 of the annotation. There was no competent evidence in the instant case that the damage was done by a windstorm nor is there competent evidence to show that there was a windstorm. We do not think that any court has consciously intended to hold that any wind amounted to a windstorm simply because it happened to damage property.
Appellee contends that appellant is estopped to contend that the court erred in overruling the motion for a judgment notwithstanding the mistrial, for the reason that, after the court had overruled a motion for a directed verdict generally, appellant moved for a directed verdict against attorney's fees and damages for bad faith, stating: "Now, after the conclusion of the evidence, the defendant moves for a directed verdict in its favor relative to any damages for attorney's fees for alleged bad faith because the evidence as to windstorm although sufficient to create a question for the jury is not of such compelling weight and character to show that the evidence that the defendant insurance company acted in bad faith when it refused to pay the plaintiff's claim under the policy. For that reason plaintiff is not entitled to recover damages for attorney's fees, as a matter of law, and the question of bad faith should not be submitted to the jury." Thereupon, counsel for both parties approached the bench and agreed that the motion as to bad faith was good, and counsel for the plaintiff stated "that he here in open court was withdrawing that voluntarily after the motion made by counsel for defendant from further consideration of the jury [sic]." There is no ground for estoppel here. What the appellant's attorney said about the issue as to windstorm's being a question for the jury at that time was the law of the case under the court's ruling overruling the defendant's motion for a directed verdict generally and the appellee did not base his agreement to eliminate the damages issue on the appellant's statement.
The court erred in overruling appellee's motion for a judgment notwithstanding the mistrial, and direction is given that judgment be entered in accordance with such motion.
Judgment reversed. Hall and Eberhardt, JJ., concur.