Sussex Poultry Co., Inc. v. American Insurance Co.
Opinion
This appeal follows from an unsuccessful effort by plaintiff-insured to persuade a jury that damage to its poultry house was caused by wind, a covered risk under a policy of insurance issued by defendant. Plaintiff contends that causation was established as a matter of law and that it was unfairly prejudiced by remarks of defendant’s counsel in closing arguments to the jury and by various rulings of the Trial Court.
We have considered these arguments and conclude that they are not so persuasive that the judgment below should be reversed. Accordingly, it will be affirmed with these comments:
(1) Causation: A special interrogatory was submitted to the jury which found that plaintiff had not proved by a preponderance of the evidence that damage to the building was proximately caused by windstorm. There was evidence to support the finding of the jury and on appeal its verdict is conclusive. Art. 4, § 11, Constitution ; Haveg Corporation v. Guyer, Del.Supr., 226 A.2d 231 (1967). Plaintiff’s evidence showed that the damage was discovered on March 21, 1969; plaintiff relied upon a hypothesis developed from weather data and other circumstances to show that wind damaged the property during a storm on November 11 or 12, 1968. Defendant, by an expert witness and through other evidence, attempted to demonstrate that the building collapsed from the weight of snow on the roof. Given the very nature of plaintiff’s evidence, we cannot say, as a matter of law, that it established causation. The jury obviously thought it did not and it was well within its jurisdiction in so saying.
(2) Argument by counsel: The ruling by the Court after interrogation of the juror was imprecise * but it was clear *283 that counsel (a) could not refer to the fact that a juror had sent a note to the Court but, (b) could argue the ideas in the note if they were based upon evidence or inferences therefrom. In his summation defendant’s counsel did not refer to the note but did argue ideas advanced in it.
Plaintiff’s counsel stated to the Court that his “expert . . . testified that it is his theory that the post was lifted off the pin, and that is part of my evidence and I will argue that.” Defendant’s counsel had a right to discuss such evidence and that is what he did in arguing that the theory was not supported by evidence from the wreckage.
We note also that plaintiff did not raise an objection before the jury retired and so did not give the Trial Court an opportunity to rectify any damage done; this is an additional reason for refusing to find error as the basis of counsel’s remarks. 53 Am. Jur., Trial § 505.
On this record we cannot say that defendant’s counsel violated the instructions of the Court or that they were unfairly prejudicial to plaintiff.
(3) Newly-discovered evidence: We can understand plaintiff’s desire to get before a jury what it found by post-trial inspection of the property but it had complete control of the building for some two years between the date when the damage was discovered and the date when the trial started. On these facts plaintiff has failed to show that with reasonable diligence it could not have discovered the evidence before trial. Compare Bata v. Hill, Del.Supr., 39 Del.Ch. 548, 170 A.2d 711 (1961) and Haas v. Jones, Del.Super., 8 Terry 415, 93 A.2d 915 (1953).
Other arguments have been considered and found to be either irrelevant or without merit.
Affirmed.
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301 A.2d 281 (Sussex Poultry Co., Inc. v. American Insurance Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.