Cisneros v. New Hampshire Insurance Co.

475 S.W.2d 351, 1971 Tex. App. LEXIS 3056
CourtCourt of Appeals of Texas
DecidedDecember 30, 1971
DocketNo. 669
StatusPublished
Cited by2 cases

This text of 475 S.W.2d 351 (Cisneros v. New Hampshire Insurance Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cisneros v. New Hampshire Insurance Co., 475 S.W.2d 351, 1971 Tex. App. LEXIS 3056 (Tex. Ct. App. 1971).

Opinion

OPINION

BISSETT, Justice.

This is a suit on two insurance policies to recover for storm damage to a building and its contents. At all times pertinent hereto, Antonio Cisneros, Jr., appellant, had in force and effect a policy of fire and extended coverage insurance with New Hampshire Insurance Company covering a building owned by him in Brownsville, Texas, and a policy of fire and extended coverage with Pan American Thrift Insurance Company covering the contents of the building. On the night of May 12, 1969, the Brownsville area was struck by a rainstorm, accompanied by hail and high winds. Appellant’s building and the contents therein were damaged as a result of the collapse of a portion of the roof of the building that caused water to pour inside and soak some of the contents therein. Appellant placed his damages at $11,050.49 to his building and $3,157.85 to the contents thereof. He alleged that such damages were caused by the wind that accompanied the rain.

Appellant filed suit to recover the damages alleged to have been sustained as a result of the storm. Trial was to a jury. Based on jury findings that were favorable to the defendants-appellees, a take-nothing judgment was entered against plaintiff-appellant. Appeal has been timely perfected to this Court. We affirm.

In addition to general denials, the appel-lees specifically plead that the damages allegedly sustained by appellant were caused by an excluded risk, that is, an accumulation of water upon the roof, and therefore not covered by the insurance policies then owned by appellant. The following statement appears in appellant’s brief: “Insured’s cause of action hinged on the single issue of whether wind or accumulation of water on roof caused its collapse”.

The case was submitted to the jury on seven special issues, the last six of which were to be answered only in the event that they answered special issue no. 1, “It was”. The issue reads as follows:

“Do you find from a preponderance of the evidence that wind was the dominant efficient cause of the collapse of the Mr. Q warehouse roof on the occasion in question ?”

[353]*353The jury answered “It was not”. No objection was made to the charge of the court or to any issue contained therein.

We shall first consider appellant’s second and third points of error, the same being “no evidence” points. With respect to “no evidence” points, we are required to consider only the evidence and inferences favorable to the jury findings and to disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965). We are without authority to disregard the jury findings in response to special issues submitted when there is some evidence in the record to support them. Singer v. Singer, 150 Tex. 115, 237 S.W.2d 600 (1951).

Appellees, by their pleadings, plead specific exclusions under the existing contracts of insurance and thus raise the issue of contract coverage. It, therefore, became appellant’s burden to present evidence of probative value and to secure a fact finding by the jury that the dominant efficient cause of the loss was the wind that accompanied the rain. Hardware Dealers Mutual Insurance Co. v. Berglund, 393 S.W.2d 309 (Tex.Sup.1965); Wheelook v. American Fire and Casualty Co., 414 S.W.2d 61 (Tex.Civ.App.—Austin 1967, writ ref’d n. r. e.).

In discussing fire, windstorm and extended coverage in the standard policy of insurance, the Court, in Fidelity Southern Fire Insurance Company v. T. B. Crow, 390 S.W.2d 788, 793 (Tex.Civ.App.—Waco 1965, writ ref’d n. r. e.), said:

“ . . . It is our view that our Texas courts have consistently ruled that, under the basic policy, plaintiff has the burden of proving that the loss fell within the coverage of the policy and not within the provisions of the exclusions of the policy whenever the affirmative defense of the exclusion is asserted. . . .”

That rule applies to the instant case.

The storm deposited some five inches of rain on the area within a short period of time, as revealed by the weather records that were introduced in evidence. The highest wind velocity was 78 miles per hour registered in a gust at approximately 8:43 p. m. Thereafter, the highest wind was 45 miles per hour at about 1:38 a. m. on May 13, 1969. The collapsed roof was first discovered by the witness Herbert Stresser, who worked at the used car lot next door. Mr. Stresser testified that he went down to his place of business at approximately 11:00 p. m. on May 12, 1969, and remained there until about 1:30 a. m. the next morning; his office consisted of a wood frame building sitting on a concrete foundation; he sustained no damage to his building nor to his light poles and signs. He also stated that there was no damage to any other of the structures in the neighborhood. Mr. Stresser also testified that during the time that he was on his premises (from 11:00 p. m. to 1:30 a. m.), he saw nothing unusual and heard nothing unusual with respect to appellant’s building; however, the next morning when he came to work he noticed water running out of the front door of appellant’s building and when he looked inside he saw that the roof had collapsed.

The evidence presented by appellant did nothing more than create a fact question as to whether the wind or the accumulation of water on the roof caused the collapse of the roof and the ensuing damage. The jury was free to believe or disbelieve all or any portion of the evidence presented by appellant. That the appellant failed to meet his burden is reflected by the finding of the jury above stated. We have reviewed the entire record in the light most favorable in support of the jury’s answer to special issue no. 1. The answer is fully supported by the evidence. In our opinion, the trial court properly entered judgment for appel-lees on the jury verdict for the reason that appellant, as plaintiff in the trial court, did not sustain his burden of proof on the action brought by him. Appellant’s second and third points are overruled.

Appellant, by his first point of error, asserts that the trial court erred in not [354]*354sustaining appellant’s motion to exclude the testimony of B. J. Osborne as being based on hearsay. This point cannot be sustained. The witness, B. J. Osborne, a structural engineer whose qualifications as an expert in the field are not challenged, was called by appellees. He first inspected the subject building on December 3, 1969, following the collapse of the roof in May, 1969. He testified that an excessive load of water on the roof caused the collapse. On cross-examination, when asked the reason for his conclusion that the accumulation of water on the roof caused its collapse, he answered:

“I had the testimony — -I don’t know whether ‘testimony’ is the correct word but Mr. Tucker described the circle, the staining. We’ve got a picture here somewhere”.

Mr. Tucker was the claim adjuster for ap-pellees, who did not testify at the trial. The picture referred to by Osborne was introduced in evidence by appellant.

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Bluebook (online)
475 S.W.2d 351, 1971 Tex. App. LEXIS 3056, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cisneros-v-new-hampshire-insurance-co-texapp-1971.