National Fire Insurance v. Albers

⁶⁰⁰ Urner, J., delivered the opinion of the Court. By the policy which is the basis of this suit, the plaintiff was insured to the amount of $2,000, against “direct loss and damage by windstorm, cyclone and tornado,” to his dwelling house and garage, on Miller’s Island, in Chesapeake Bay, within the limits of Baltimore County. The buildings were damaged by a storm which began on the morning of August 23rd, 1933, and continued until the early hours of the following day. It was a storm of extraordinary violence.

The wind reached a velocity of fifty miles an hour and the island was inundated to the depth of several feet by the waters of the bay, when the tide was raised to that abnormal height by the force of the hurricane. Many trees on the island were blown down and a number of houses demolished or badly damaged. The island was' abandoned by its inhabitants until the storm and water subsided. The plaintiff’s dwelling house, a frame bungalow, was practically ruined.

It had been erected on concrete pillars about thirty inches high, on a site seven or eight feet above the level of the beach, and thirty-five feet to the rear of a sea wall five or six feet high, by which the front of the lot was retained and protected from the tide. On the morning after the storm had abated, the plaintiff’s house was found to have been forced from its supporting pillars and its condition is thus described in the testimony: “The front of the house was wrenched entirely from the building, as the photographs will show. The second portion and kitchen section on the south, on the east side, were wrenched from the building. * * * There were shingles broken off of the roof and the side walls and rear walls looked like they had been wrenched away from the rafters.” The defense to the suit, which resulted in a verdict and judgment for $1,200 in favor of the plaintiff, was based upon provisions in the policy that the insurer should not be liable for “loss or damage occasioned directly or indirectly by or through any * * * tidal wave, * * * high water, overflow, nor cloud burst * * nor “for any loss or damage caused by water or rain, whether driven by ⁶⁰¹ wind or not, unless the building described * * * shall first sustain an actual damage to roof or walls by the direct force of the wind, and shall then be liable only for such damage to the interior of the building * * * as may be caused by water or rain entering the building through openings in roof or walls made by direct action of the wind. * * *” The trial court framed and delivered an instruction to the jury that the policy sued on did not insure the plaintiff against loss or damage caused directly or indirectly by tidal wave, high water, overflow, or cloudburst, water or rain, whether driven by the wind or not, and further, at the defendant’s request, instructed the jury that the burden was upon the plaintiff to prove by a preponderance of evidence that the damage to his dwelling and garage was caused by a windstorm, cyclone, or tornado, and not either directly or indirectly by tidal wave, high water, or overflow, whether driven by rain or not, and that the jury, if they found for the plaintiff, should not make any award to him for such part of the damage as they might find to have been caused directly or indirectly by wind driven high water or overflow. But primarily the defendant endeavored to procure instructions that there was no legally sufficient evidence of damage to the plaintiff’s dwelling and garage caused by windstorm, cyclone, or tornado, and that from the uncontradicted evidence such damage appeared to have been directly or indirectly caused by high water or overflow, and that the verdict should therefore be in the defendant’s favor.

The refusal of the court thus to direct a verdict for the defendant was the main subject of the argument on this appeal. Upon the evidence in the record, our conclusion is that the court below was right in declining to withdraw the case from the jury. It could be rationally inferred from the testimony that the windstorm was the cause of the principal damage to the plaintiff’s buildings. As they stood, according to the proof, upon the highest part of the island, they