Opinion
37270, 37295.
DECIDED OCTOBER 8, 1958. REHEARING DENIED OCTOBER 24, 1958.
Action on insurance policy. Fulton Civil Court. Before Judge Parker. May 19, 1958.
Smith, Field, Doremus Ringel, Sam F. Lowe, Jr., for plaintiff in error.
Nall, Miller, Cadenhead Dennis, William W. Griffin, Earl J. Van Gerpen, contra.
1. Where the averments of a petition in a suit on an insurance policy reveal that the risk was not covered by the policy, no cause of action is set forth.
2. Where a ruling on the main bill of exceptions disposes of the whole case, questions raised by the cross-bill of exceptions will not be considered.
DECIDED OCTOBER 8, 1958 — REHEARING DENIED OCTOBER 24, 1958.
Charles Edison Walker, Mary Miles Walker and the Prudential Insurance Company of America filed their suit against Aetna Insurance Company. The petition contained the following allegations: that the defendant is Aetna Insurance Company, a nonresident insurance company transacting business in the State of Georgia, having an agent, Tyree McD. Almond, 1401 Peachtree Street N.E., Atlanta, Fulton County, Georgia, authorized to accept service of process for and in behalf of the company; that defendant through its Southern Underwriters Department issued a policy of insurance, No. S 30-32-19 on January 16, 1956, insuring property described therein against all physical loss, except as therein excluded, a copy of the policy being attached hereto, made a part hereof and marked Exhibit "A"; that petitioners, Charles Edison Walker and Mary Miles Walker, owned the property on January 16, 1956, and at all times subsequent thereto in fee simple subject to an outstanding security deed in favor of petitioner, the Prudential Insurance Company of America; that on or about January 30, 1957, three wet-weather springs from subterranean water seeped to the surface of the ground under the house from three directions, the spring water flowing under the footing of the house and seeping to the surface, forming standing pools of water under the house and around the piers as deep as twelve (12) inches in certain spots, and transforming the entire ground upon which the house rests into a soft mud, the mud being of such consistency and depth that a hoe handle could be easily driven its full length of five feet under the surface of the ground by the weight of a man of ordinary size; petitioners show that their house has suffered water damage in the following particulars; the foundation walls of the house have collapsed, sunk into the ground, and broken apart due to undermining by water and due to the pressure of standing water from the three wet-weather springs hereinabove mentioned; that the wooden parts of the house which are located underneath the house have been damaged by becoming water soaked, mildewed, and rotted; that the piers supporting the house have begun to crumble, collapse, and get out of proper alignment due to water rising around them to as much as twelve (12) inches; that as a direct and proximate result of the water damage other injury to the house has occurred as more particularly described hereinafter; that on or about January 30, 1957, the house described and insured in the policy of insurance began to collapse and break apart; said collapse was sudden and accompanied by a loud noise; during the following month large cracks appeared in the walls and ceilings throughout the interior of the house, the floor dropped several inches and doors and trim throughout the house were pulled apart at seams, floor tile in one bathroom was cracked, large cracks appeared about the window frames, and numerous cracks appeared in the brick veneer covering the outside of the house; the cost of repair and correction of the damage to the house as a result of the collapse of the house is $5,356.16, which sum represents the difference in market value of the property immediately before the collapse and immediately after the collapse and the amount of petitioner's loss; the loss was caused by the collapse of the house and water damage due to seepage under the house; timely proof of loss was submitted to the defendant in accordance with the provisions of the policy; demand was made on May 23, 1957, for payment of the loss and the defendant refused within sixty days to pay the loss, the refusal being in bad faith and the defendant is therefore liable for a penalty of twenty-five percent plus reasonable attorney's fees for petitioners for prosecuting this case; immediately after receipt of the demand for payment the defendant forwarded notice of cancellation of the policy to petitioners, Charles Edison Walker and Mary Miles Walker; the policy was in force at the time of the loss heretofore alleged.
The provisions of the policy necessary to a clear understanding of the issues made by the pleadings are contained in provisions of the policy reading: "This policy insures against all risks of physical loss, except as hereinafter excluded to the described property. B. Loss by termites or other insects; deterioration; smoke from agriculture smudging or industrial operations; rust; wet or dry rot; mold; mechanical breakdown; settling, shrinkage or expansion of foundations, walls, floors, or ceilings; this exclusion, however, shall not apply to loss by fire, smoke (except as specifically excluded above), explosion, landslide, collapse, water damage or glass breakage, caused by perils excluded in this paragraph. C. Loss by earthquake, surface waters, flood waters, waves, tide or tidal wave, highwater, or overflow of streams or bodies of water, all whether driven by wind or not, or whether caused by or attributable to earthquake; this exclusion, however, shall not apply to loss by fire, or explosion caused by perils excluded in this paragraph."
The defendant demurred to the petition generally, and to the portion of paragraph 4 that the plaintiffs' house "Began to collapse and break apart" on the ground that the allegation was a conclusion of the pleader, and because there was no allegation showing "either a collapse or breaking apart."
The trial judge overruled the demurrer to the petition as a whole, and sustained the demurrer to the allegation that the house "began to collapse and break apart."
The defendant excepted to the overruling directed against the petition as a whole; the plaintiffs excepted to the order sustaining the demurrer to the allegation as to the collapse of the house. Hence the case is here on direct and cross-bill of exceptions.
1. We will not designate the parties as plaintiff and defendants in error, but where it is necessary to distinguish them, they will be called the insurer and the insured.
A suit to recover for losses from risks covered by an insurance policy is a suit for breach of contract. To set forth a cause of action the petition must show the risk came within the general coverage of the contract, and must not disclose that it was excluded from the coverage of the policy by any clause contained in it.
Damage to the plaintiffs' house caused by "surface water" is a risk excluded from the coverage of the policy in this case. The policy is attached to the petition as an exhibit. Consequently, if the waters described in the petition as standing about the piers and foundation of the plaintiffs' dwelling house, and averred to have resulted in the damage to the house were surface waters, facts are not alleged upon which recovery may be had. Definitions of surface water come from text books and decisions of the courts of other jurisdiction.
"Surface waters are those which fall on the land from the skies or arise in springs and diffuse themselves over the surface of the ground, following no defined course or channel, and not gathering into or forming any more definite body of water than a mere bog or marsh." 93 C. J. S. 799, Waters, § 112.
"Surface waters consist of waters from rain, springs, or melting snow which lie or flow on the surface of the earth, but which do not form part of a well-defined body of water or natural water course. They do not lose their character as surface waters merely because in a measure they are absorbed by or soak into the marshy or boggy ground where collected." Enderson v. Kelehan, 226 Minn. 163, 167 ( 32 N.W.2d 286).
"`Surface water' is water which is derived from falling rain or melting snow, or which rises to the surface in springs, and is diffused over the surface of the ground, while it remains in such diffused state, and which follows no defined course or channel, which does not gather into or form a natural body of water, and which is lost by evaporation, percolation, or natural drainage." Sun Underwriters Ins. Co. v. Bunkley, (Texas Civ. App.) 233 S.W.2d 153 (2).
"Surface water is water of casual, vagrant character, oozing through the soil or diffusing and squandering over and under the surface, which, though usually and naturally flowing in known direction, has no banks or channel cut in the soil." Neal v. Ohio River R. Co., 47 W. Va. 316 ( 34 S.E. 914).
The Supreme Court of Georgia defines "surface water" as follows: "Thus it is material to consider whether the overflow as above stated is properly classed with surface water. This depends upon the configuration of the country and the relative position of the water after it has gone beyond the usual channel. If the flood water becomes severed from the main current, or leaves the stream never to return, and spreads out over the lower ground, it has become surface water. But if it forms a continuous body with the water flowing in the ordinary channel, or if it departs from such channel animo revertendi, presently to return, as by the recession of the waters, it is to be regarded as still a part of the river. The identity of a river does not depend upon the volume of water which may happen to flow down its course at any particular season. The authorities hold that a stream may be wholly dry at times without losing the character of a watercourse." O'Connell v. East Tenn., Va. Ga. Ry. Co., 87 Ga. 246, 247 ( 13 S.E. 489, 13 L.R.A. 394, 27 Am. St. R. 246).
The Supreme Court held in Stoner v. Patten, 132 Ga. 178, 180 ( 63 S.E. 802): "An underground stream of water differs from a surface stream only with respect to its location above or below the surface."
The insured insists that the waters described in the petition do not come within the definitions of "surface waters" to which reference has been made. The insured's position is that they were subterranean or ground waters even after reaching the face of the earth, because, though it is not alleged in the petition, they would eventually return to their normal water table below the surface of the earth.
As authority for this view he cites and quotes from the books written or compiled by eminent geologists. The works are Bulletin 65 of the Department of Mines, Mining and Geology of Georgia; The Availability and Use of Water in Georgia, by M. T. Thompson, S. M. Herrick, and Eugene Brown, published in December 1956. Applied Hydrology, by Ray K. Linsley, Jr., Max A. Kohler, and Joseph L. H. Paulhus, published in 1949 by McGraw Hill Book Company, Inc., is quoted as follows: "The water table, since its position is dependent on the continued accretion of ground water, fluctuates with annual variations in rainfall, being both lower and flatter after dry spells than after rainy periods. For various reasons the water table in some areas intersects the land surface, and springs or seeps result. Wet-weather seeps occur when a water table, raised by protracted rains cuts the land surface."
The insured concludes that because in these works spring waters and ground waters are discussed in the same chapter the geologists consider spring waters and ground waters of the same nature.
The holding of Saddler v. Lee, 66 Ga. 45 (42 Am. R. 62) makes it very clear that subterranean waters that find a water table above the surface of the earth must be classified either as bodies of water within well defined basins, streams flowing within their banks; or as surface water, and while upon the face of the earth lose their identity as "ground waters." Also refer to Pelham Phosphate Co. v. Daniels, 21 Ga. App. 547, 556 ( 94 S.E. 846). The books on geology to which the insured called attention simply explain the process by which subterranean waters penetrate the surface and form in basins or springs. Their presence either under the earth or upon the earth, in our opinion, impresses them with the nature and status of the place in which they are found, either subterranean or terranean. (The last word is used in its shade of meaning — "upon the earth," though it has another — "from the earth." Webster's New International Dictionary, 2d ed.). The word subterranean, being so well understood, needs no definition, but is defined by Words and Phrases, Vol. 40, page 532 as "The term `subterranean waters,' as used in the Restatement of this subject [Restatement, Torts, § 845] comprehends waters which lie or flow under the surface of the earth and which are not artificially confined."
The waters described in the petition as standing around the foundations and piers of the insureds' house and from which damage to the same is alleged to have resulted, were not alleged to stand in the basins of the springs from which they emanated, or in any other body of water, or to belong to any definite stream of water, nor was there an averment that these waters would eventually return to any definite body or stream of water.
In this connection it is well to note that, while the petition related that the waters in question seeped from three subterranean springs, there is no allegation that, while standing about the piers and foundations of the house, they were retained in the natural basins of the springs or would return to those basins. The description of the waters as contained in the petition fits all the definitions given of surface waters by the great weight of authority and by our Georgia courts. Hence, the petition reveals that the damage to the insureds' house was caused by a risk against which the policy did not afford coverage.
2. The effect of holding that the petition sets forth no cause of action is to dispose of the whole case, hence we do not decide the question raised by the cross-bill as to whether coverage of an insurance policy for collapse extends to a collapse of a structure that has begun and in the order of nature must inevitably continue until it is complete.
Judgment reversed on main bill of exceptions; cross-bill of exceptions dismissed. Felton, C. J., and Nichols, J., concur.