Smith v. Ætna Insurance

Court of Appeals of Georgia

Smith v. Ætna Insurance

199 S.E. 557, 58 Ga. App. 711, 1938 Ga. App. LEXIS 106

Court of Appeals of Georgia·Decided October 24, 1938·No. 27139·Published·Cited by 8 cases

Opinion

Felton, J.

This is a suit on a policy of fire insurance. The positive, uncontradicted, and unimpeached testimony of several of the defendant’s witnesses showed that a material and substantial part of the building insured was caused to fall by a tornado before it burned. Under the terms of the policy in such a case there could be no recovery. The testimony of the plaintiff’s witnesses was at the most only circumstantial, and was consistent with that of defendant’s witnesses. Frazier v. Georgia Railroad & Banking Co., 108 Ga. 807 (33 S. E. 996); Georgia Railway & Electric Co. v. Harris, 1 Ga. App. 714 (57 S. E. 1076); Emory University v. Bliss, 35 Ga. App. 752 (134 S. E. 637); Federal Reserve Bank of Atlanta v. Haynie, 46 Ga. App. 522 (168 S. E. 112); Taggart v. Savannah Gas Co., 179 Ga. 181 (175 S. E. 491); Griffin v. Barrett, 183 Ga. 152, 165 (187 S. E. 828); Pennsylvania R. Co. v. Chamberlain, 288 U. S. 333 (53 Sup. Ct. 391, 77 L. ed. 819). All the plaintiff swore was that he went as close as 100 yards to the building and that he saw the two fronts of his building standing after the tornado. The defendant’s evidence to the effect that the roof had caved in and that the back walls had crumbled was not in any way contradicted. One of the witnesses for the plaintiff testified that it rained after the storm, but that the first floor of the building back to the stairs was not wet thirty minutes after the storm. This testimony is not inconsistent with the evidence that the roof and back walls were caved in. The building was two stories high and it is reasonable to conclude that water would not have seeped through the caved-in roof, the ceiling to the second floor, the floor of the second story, and the ceiling to the first floor, in thirty minutes. We do not think it necessary to quote the voluminous testimony. The court did not err in overruling the motion for new trial. The other headnotes require no elaboration.

Judgment affirmed.

Stephens, P. J., and Sutton, J., concur.

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Felton, J.

This is a suit on a policy of fire insurance. The positive, uncontradicted, and unimpeached testimony of several of the defendant’s witnesses showed that a material and substantial part of the building insured was caused to fall by a tornado before it burned. Under the terms of the policy in such a case there could be no recovery. The testimony of the plaintiff’s witnesses was at the most only circumstantial, and was consistent with that of defendant’s witnesses. Frazier v. Georgia Railroad & Banking Co., 108 Ga. 807 (33 S. E. 996); Georgia Railway & Electric Co. v. Harris, 1 Ga. App. 714 (57 S. E. 1076); Emory University v. Bliss, 35 Ga. App. 752 (134 S. E. 637); Federal Reserve Bank of Atlanta v. Haynie, 46 Ga. App. 522 (168 S. E. 112); Taggart v. Savannah Gas Co., 179 Ga. 181 (175 S. E. 491); Griffin v. Barrett, 183 Ga. 152, 165 (187 S. E. 828); Pennsylvania R. Co. v. Chamberlain, 288 U. S. 333 (53 Sup. Ct. 391, 77 L. ed. 819). All the plaintiff swore was that he went as close as 100 yards to the building and that he saw the two fronts of his building standing after the tornado. The defendant’s evidence to the effect that the roof had caved in and that the back walls had crumbled was not in any way contradicted. One of the witnesses for the plaintiff testified that it rained after the storm, but that the first floor of the building back to the stairs was not wet thirty minutes after the storm. This testimony is not inconsistent with the evidence that the roof and back walls were caved in. The building was two stories high and it is reasonable to conclude that water would not have seeped through the caved-in roof, the ceiling to the second floor, the floor of the second story, and the ceiling to the first floor, in thirty minutes. We do not think it necessary to quote the voluminous testimony. The court did not err in overruling the motion for new trial. The other headnotes require no elaboration.

Judgment affirmed.

Stephens, P. J., and Sutton, J., concur.

Smith v. Ætna Insurance, 199 S.E. 557, 58 Ga. App. 711, 1938 Ga. App. LEXIS 106 (Ga. Ct. App. 1938).

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