Travelers Indemnity Company v. Rawson

222 So. 2d 131
CourtMississippi Supreme Court
DecidedApril 14, 1969
Docket45322
StatusPublished
Cited by41 cases

This text of 222 So. 2d 131 (Travelers Indemnity Company v. Rawson) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Travelers Indemnity Company v. Rawson, 222 So. 2d 131 (Mich. 1969).

Opinion

222 So.2d 131 (1969)

The TRAVELERS INDEMNITY COMPANY
v.
James L. RAWSON and Mrs. Jan Rawson.

No. 45322.

Supreme Court of Mississippi.

April 14, 1969.

*132 Wilbourn, Williams & Glover, Meridian, for appellant.

Goldman, Self & Goldman, Pigford & Hendricks, Meridian, for appellees.

BRADY, Justice:

This is an appeal from a judgment of the Circuit Court of Lauderdale County affirming a judgment of the county court in favor of appellees in the sum of $1253 for wind and rain damage to their home.

The controlling facts in this cause are as follows. On April 20, 1961, a wind and rain storm policy of insurance was obtained by the appellees from the appellant, The Travelers Indemnity Company of Hartford, Connecticut. Appellees' declaration alleged that on or about January 15, 1965, during an interval of high winds and stormy weather, the roofing on appellees' residence, which was insured, was blown up or disturbed and that water flowed into their house because of said wind damage to the roof, damaging the walls, ceilings and floors of the living room, back bedroom, kitchen and bathroom, in the sum of $1485.60. An order requiring a bill of particulars was granted, and the time the damage occurred from the windstorm was fixed by the appellees at shortly after lunch time on January 15, 1965. Among other specifications, the bill of particulars set out that the shingles on the entire back part of the roof were blown up and twisted away from the felting. The cost of all repairs occasioned because the water had entered into the cracks between sheeting over several areas of the back of the house was itemized.

*133 The controlling provision of the contract of insurance entered into between the parties to this suit is as follows:

This Company shall not be liable for loss to the interior of the building or the property covered therein caused, (a) by rain, snow, sand or dust, whether driven by wind or not, unless the building covered or containing the property covered shall first sustain an actual damage to roof or walls by the direct force of wind or hail and then shall be liable for loss to the interior of the building or the property covered therein as may be caused by rain, snow, sand or dust entering the building through openings in the roof or walls made by direct action of wind or hail * * *. (Emphasis added.)

Proof offered by appellee James L. Rawson was that the wind was of sufficient violence to cause the shingles on the roof of appellees' home to stand up and that when he inspected the roof the following day subsequent to the termination of the wind and rain, the shingles were still standing up. Appellee Mrs. Jan Rawson testified that during the wind and rain storm the house leaked and water came down the walls and onto the floor of the house. Mr. Ray Joiner, who is and has been a contractor for many years engaged in constructing houses and who has built houses in the vicinity of appellees' home, testified that he was requested to come into the vicinity of appellees' home by another person and that during the wind and rain storm he was there examining not only appellees' home but other homes which he had constructed and, from the record, apparently in which he had a monetary interest. He testified that the wind was terrific, that he could see that the shingles were standing up, having been blown into that position, and that because of the severity of the wind and the rain, the water was driven under the shingles and entered between the cracks of the plywood which formed a part of the roofing. On cross-examination Mr. Joiner prepared an estimate relating to the work which would have to be done to repair the roof, the cost thereof being in the sum of $694.25. The total cost of repairing all damage occasioned to the house of appellees, as testified to by this witness, was $1485.

The record discloses that Mr. Joiner, who constructed the Rawsons' house, was requested by appellee James L. Rawson to inspect his house and that approximately two days subsequent to the wind and rain storm he did so and found the damages present to which he testified. He examined the house also a day or so before the trial and reached the conclusion that it would require the expenditure of $1485 to rectify all damages he found at that time. The proof is conclusive that no steps were taken by appellees to prevent future damages from rain or the elements to the exterior or interior of the property, the substance of which proof is that the appellees permitted the house to remain in the same condition it was immediately subsequent to the wind and rain storm and that there was further deterioration because of the appellees' failure to rectify the damage.

Mrs. Rawson and a neighbor, Mrs. Dillard, testified that on this blustery, winter day they were parked immediately behind the Rawson house, sitting in the car and drinking a coca-cola, and observed the shingles of the roof blowing up in the wind.

This testimony is strongly controverted by appellant's witnesses, particularly Mr. Gray, a meteorologist employed by the United States Weather Bureau, stationed at Key Field in Meridian. He filed as an exhibit to his testimony the local climatological data report. He testified that on January 15, 1965, there was .21 inch of rain. In minute detail he outlined from the hour of midnight to 1:00 A.M. and from then on, the exact amount of rain in one hundredths inches which fell at Key Field. He also testified that shortly after lunch at 12:58 on January 15, 1965, there was a wind of seven miles per hour and that this was the highest wind velocity which was recorded at Key Field on that date.

*134 The appellant utilized the expert services of witnesses Robert W. Frazier and J.D. Tucker. Mr. Frazier, who was a salesman for Kimbrell-Ruffer Lumber Company, went upon the roof of appellees' home and found that the roof was improperly constructed and that it lacked pitch, but he failed to find any holes in any of the shingles or any holes in the roofing. He also found the flashing to be intact. J.D. Tucker, who was salesman for a building and supply company, also went upon the roof of appellees' home and found the roof to be of a low pitch. He found the shingles to have an attitude of looseness, but failed to find any physical damage to the roof.

Mrs. Patricia Fairchild testified there was one home between her home and appellees' home, that there was no damage done to her home by any wind, and that she knew of no damage which was done to the house between her home and the Rawson home. Photographs were introduced in support of the testimony of Mrs. Fairchild to show the general neighborhood and to show that the roofs of the houses were intact.

Based upon the proof as set out above, the jury returned a verdict in favor of the appellees in the sum of $1253, and a motion by appellant for a new trial was overruled. Nineteen assignments of error are urged by the appellant; however, some of these were combined by the appellant into seven questions, some of which merit consideration in this opinion.

Appellant devotes a considerable portion of his brief to the error assigned that the verdict of the jury was contrary to the overwhelming weight of the believable evidence. This Court is not in a position to evaluate or weigh the truth or falsity of the witnesses who testified for appellant and appellees as is the jury, and we have so held many times. The demeanor or bearing, the tone of voice, the attitude and appearance of the witnesses, all are primarily for inspection and review by the jury.

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Bluebook (online)
222 So. 2d 131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/travelers-indemnity-company-v-rawson-miss-1969.