Dean v. Quincy Mutual Fire Insurance Co.

392 S.W.2d 897, 1965 Tex. App. LEXIS 3074
CourtCourt of Appeals of Texas
DecidedJuly 29, 1965
DocketNo. 4324
StatusPublished

This text of 392 S.W.2d 897 (Dean v. Quincy Mutual Fire 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
Dean v. Quincy Mutual Fire Insurance Co., 392 S.W.2d 897, 1965 Tex. App. LEXIS 3074 (Tex. Ct. App. 1965).

Opinion

TIREY, Justice.

This is a hurricane case. Dean and his wife brought the action on two insurance policies under which claim for loss to a dwelling and the household goods therein situated as a result of said hurricane from September 9th through 12th, 1961. The jury verdict was favorable to the Deans and the trial court rendered judgment for the Deans against the Lititz Mutual Insurance Company which insured only the dwelling but granted motion for judgment notwithstanding the verdict in favor of Quincy Mutual Fire Insurance Company (carrier on household goods) that appellants take nothing. The Deans have perfected their appeal against that part of the judgment in favor of Quincy Mutual Fire Insurance Company, and the Lititz Mutual Insurance Company has perfected its appeal from the judgment against it, and the cause is here on transfer from the Houston Court.

We affirm the judgment of the trial court.

Our Supreme Court, on June 23rd past, in Hardware Dealers Mutual Insurance Company v. Berglund, Tex., 393 S.W.2d 309 and Paulson, et ux., v. Fire Insurance Exchange, Tex., 393 S.W.2d 316, has announced the rule that we think is applicable and controlling to the disposition of this cause of action: “In Hardware Dealers Mutual Insurance Company v. Berglund, * * * we held that although it could be said that the hurricane caused the loss, yet, nevertheless the plaintiffs could not recover unless they were able to establish that the loss did not come within the exclusionary clause relating to ‘tidal wave, high water, or overflow, whether driven by wind or not.’ * * * In McDonald v. New York Central Mutual Fire Insurance Company, Tex., 380 S.W.2d 545, * * * we held that a plaintiff could recover under an insurance policy similar to the one now before us by showing that the damage to his property was occasioned by the winds of the hurricane rather than by the high waters accompanying the storm. In the Berglund case above mentioned the trial judge submitted the case to the jury upon the theory that the evidence disclosed that a portion of Berglund’s damage was not caused by an excluded peril, namely, ‘tidal wave, high water or overflow, whether driven by wind or not.’

“However, there was no evidence from eye witnesses as to damage done to the plaintiffs’ property by wind action alone, nor did anyone attempt to estimate the proportionate part of the damage caused by wind action, independent of all other causes, considering such factors as the force of the winds and the type of construction represented by plaintiffs’ building. It is essential that the insured produce evidence which will afford a reasonable basis for estimating the amount of damage or the proportionate part of damage caused by a risk covered by the insurance policy.” (emphasis added).

Since we are of the view that the foregoing rule announced by the Supreme Court is controlling here we will attempt to examine only that portion of the record which we believe is applicable under the above rule.

First of all, the Lititz Mutual Insurance Company plead the following exclusions:

“This policy does not insure against * * * C. Loss by earthquake; surface waters, flood waters, waves, tide [899]*899or tidal wave, high water, or overflow of streams or bodies of water, all whether driven by wind or not, *

Quincy Mutual Fire Insurance Company specifically plead:

“Unless specifically named hereon, this company shall not be liable for loss * * * caused by * * * snowstorm, tidal wave, high water, or overflow, whether driven by wind or not; nor for any loss caused by rain, whether driven by wind or not, unless the wind or hail shall first make an opening in the walls or roof of the described building, and shall then be liable only for loss to the interior of the building, or the insured property therein, caused immediately by rain entering the building through such opening.”

It is the position of each of the insurance companies that the Deans did not carry their burden under the foregoing provisions of the policies sued upon and that under the rule announced in the Berglund and Paul-son cases that judgment should be rendered for each of the insurance companies. First of all, we are of the view that the Deans’ failure to sustain their burden of proof that an insured peril caused the damage to the household goods and the excluded causes did not cause the damage, that there is no error in the judgment in favor of Quincy Mutual Fire Insurance Company.

On direct-examination, Dr. Blumberg had testified that 90% of damage to the residence was caused by wind only, and testified on cross-examination in part:

“Q. * * * Let me take up one thing before we adjourn for lunch, Doctor:
Can you honestly say that the same 90% of your damage estimate applies to the furniture as it does to the house ?
A. No, sir.
Q. Certainly we have necessarily got to agree that there was a substantial loss by water, the high tide, to the contents of Mr. and Mrs. Deans’ house, do we not?
A. I am not sure what you mean by ‘substantial’, Mr. Cousins.
Q. Well, even if the water was only two feet deep in their home, it was causing damage to the contents of it?
A. Yes, sir.”

No other testimony appears in the record that is in conflict with Dr. Blumberg’s testimony with reference to the* damage percentage wise to the plaintiffs’ personal property. For this reason it will not be necessary to discuss any further any of the testimony relating to damage sustained to the household goods.

We will now give our attention to the testimony relating to damage sustained by the Deans to their home. Testimony was tendered to the effect that this home was a one story building and plaintiffs had been living in it for some several years prior to the time that Carla struck.

Mrs. Barr, who lives in the area about 800 feet from the Dean home, testified to the effect that the Barr home was constructed with an attic bedroom with windows facing both sides, and that she and her husband, son and a young friend remained in their home from September 9th to September 12, 1961; that on Monday morning and afternoon the windows in their home began to blow out; that she knew the sounds of hurricane winds, and that during the time the O’Sullivans’ house, 200 feet from the Barr place, was plainly visible for a while, but that a little later it had disappeared; that the roaring noises heard in the Carla storm were in effect similar to those she had heard in West Texas when she was ISO feet from a tornado; that after the storm had subsided, she inspected the O’Sullivan home, which [900]*900was a short distance from the Dean place, and that the only thing left was the foundation. She testified to the effect that she heard three roaring noises, one about 6:00 P.M., on Monday, September 11th, and the next about 11:30 P.M., on that date, and the next about 2:30 A.M., on the morning of Tuesday, the 12th; that the noises were going northwest over her house coming from the southeast.

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Bluebook (online)
392 S.W.2d 897, 1965 Tex. App. LEXIS 3074, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dean-v-quincy-mutual-fire-insurance-co-texapp-1965.