ABD REALTY CORP. v. Orient Ins. Co.

112 S.E.2d 400, 235 S.C. 467
CourtSupreme Court of South Carolina
DecidedJanuary 12, 1960
Docket17602
StatusPublished

This text of 112 S.E.2d 400 (ABD REALTY CORP. v. Orient Ins. Co.) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
ABD REALTY CORP. v. Orient Ins. Co., 112 S.E.2d 400, 235 S.C. 467 (S.C. 1960).

Opinion

235 S.C. 467 (1960)
112 S.E.2d 400

A.D.B. REALTY CORPORATION, Appellant,
v.
ORIENT INSURANCE CO., Respondent.

17602

Supreme Court of South Carolina.

January 12, 1960.

*468 Messrs. Lee & Moise, of Sumter, for Appellant.

Messrs. Nash & Wilson, of Sumter, for Respondent.

*469 January 12, 1960.

OXNER, Justice.

This is an action on a policy insuring a residence of appellant against "All Physical Loss". Respondent Insurance Company denied liability upon the ground that the damage to the property came within an exclusionary clause which provides that the policy does not insure against loss by "* * * normal settling, shrinkage or expansion in foundations, walls, floors, or ceilings; * * *".

On the trial of the case, each party made a motion for a directed verdict at the conclusion of the testimony. The trial Judge refused both motions and submitted the case to the jury which returned a verdict in favor of the Insurance Company. Appellant thereupon made a motion for judgment non obstante veredicto or, in the alternative, for a new trial. This motion was refused.

We shall first discuss the exceptions charging error in refusing appellant's motion for a directed verdict. This necessitates a rather extended review of the testimony.

Appellant corporation purchased a fine residence in the city of Sumter which was built in 1906. It was one of the best constructed houses in that area. Mrs. Alice D. Boyle is president of appellant and its principal, if not sole, stockholder. She and her husband, Edwin B. Boyle, a prominent and successful businessman of Sumter, planned to use this residence as their home. They completely renovated and *470 decorated it but made no major structural changes. New cornices were put up in a number of the rooms. Some of the picture molding was elevated. The stairway leading into the attic was widened. The varnish on the woodwork was removed and the house painted both inside and outside. Mr. Boyle testified that the plastering was in good condition and that there were only a few minor cracks.

Around noon on Saturday, January 4, 1958, after the house had been cleaned, Mrs. Boyle locked it up and left the heat on, planning to move in one Monday or shortly thereafter. When she returned on Monday, she found that the plastering had cracked in almost every room, several mantels were loose and about three-fourths (3/4) of an inch from the wall and the wainscoting had pulled out about one-eighth (1/8) of an inch from the wall. The testimony does not disclose the exact temperature during this weekend or when the heat was first turned on. Mrs. Boyle testified that she did not "recall it being cold" and that "we had heat on about 65, normal." There is no testimony of any unusual occurrence in Sumter about this time or that any other house was damaged.

After the foregoing occurrence, the cracks in the plastering were filled, the walls repainted and floors refinished but no effort was made to do a complete repair job so as to place the house in the same condition it was in on January 4th. Mr. and Mrs. Boyle moved into this home during the second week in March, 1958. On March 21st, while in the den, Mr. Boyle heard a faint noise behind his chair and found that the plastering had cracked in several places. He said there was a "bulging out of the skim coat". Upon examining the other rooms, several cracks were also found in the kitchen but they were not as extensive as those that appeared during the weekend of January 4th. On the following day, March 22nd, a drain pipe in an upstairs bathroom started leaking, with water dripping through the ceiling into the dining room.

*471 The testimony of Mr. and Mrs. Boyle is somewhat conflicting as to whether the plastering cracked only on the two occasions above mentioned. Mr. Boyle said that there was "no continuous cracking of the walls" and no further cracks appeared after March 21st, while Mrs. Boyle testified:

"Q. Miss Alice, I understand you to say that has been a continual process since you have been in the house? A. Yes.

"Q. That correct? A. Yes, sir.

"Q. And places that were even repaired after the 4th of January, have cracked again? A. Yes.

"Q. And, well, did you hear any noises in the house, when they cracked? A. No, I don't recall any.

* * *

"Q. This has been continuous and continual, is that correct? A. I would think so."

It is conceded that there was a "physical loss" to this house. Appellant is, therefore, entitled to recover unless the damage comes within the clause excluding loss by "normal settling, shrinkage or expansion in foundations, walls, floors, or ceilings." Appellant says that there is no evidence that the damage resulted from any of these causes while respondent contends that the damage was caused by normal contraction and expansion of the plastering, or at least more than one reasonable inference can be drawn thereabout, necessitating submission of this issue to the jury.

Appellant's experts were unable to explain exactly what caused the plastering to crack. One said the damage was caused by "some abnormal disturbance" by which he meant something "other than usual course of things." Another said that "there was not a usual circumstance that caused the cracking." Several conceded that "expansion and contraction do cause cracks" but stated that it would have to be "more than usual" to have caused the cracks in this house. However, one of appellant's experts testified:

*472 "Q. Now, Mr. Gibson, if there were extensive work being carried out there, in a big building of that type, that building, during the winter, and the building were left open, and filled up with cold air, and it was suddenly closed up tight, heat applied, heat turned on it in the closed up building, would that have any effect on the expansion and contraction? A. Possibly.

"Q. Very probable? A. If it had been left open up until the January when the time this thing is supposed to have happened, if it had been left open just until a few days before that and then put the heat on, I can possibly see how that could have caused it, but if the heat had been on three or four months prior to that, I don't see any possibility."

We now turn to the testimony offered by respondent. One of its expert witnesses who examined this house in May after the occurrence said that he found that new cornices had been put up and "apparently anchored both to walls and ceilings and that all of the paneling that had been repainted in a light color had been puttied up, patched and painted with a tenacious paint, so that it made just one homogeneous panel. There were no cracks at the edges that ordinarily would be at ceiling and floor."

He further testified:

"Q. What effect does it have to paint this building and to varnish it, what effect would that have on the contracting and expansion, if you have those puttied up places like you told us about? A. If we seal it at both top and bottom, what we would do is confine the normal movement of that wall, a wall or floor or, every component part of a building moves and breathes * * *. And so, if we would putty these things up and putty them solid and we had a cool wall for instance, if it was cool weather when we did the work and we confined a wall from both floor to ceiling, then when that wall started to warm, the surface would expand and you would get a condition like that —

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A. D. B. Realty Corp. v. Orient Insurance
112 S.E.2d 400 (Supreme Court of South Carolina, 1960)

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Bluebook (online)
112 S.E.2d 400, 235 S.C. 467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abd-realty-corp-v-orient-ins-co-sc-1960.