Opinion
No. 39606.
April 25, 1955.
1. Trial — directed verdict — evidence — in determining — how treated.
In determining whether a directed verdict should be granted, the evidence must be taken most strongly in favor of party against whom it is asked; and every material fact which there is substantial evidence to establish, whether directly or by reasonable inference, should be taken as proven in his favor.
2. Insurance — direct loss by windstorm — usual provisions limiting company's liability — evidence — presented fact issue to jury.
In action to recover on insurance policy covering plaintiff's dwelling and extending coverage to include direct loss by windstorm, with usual provisions limiting company's liability, evidence was sufficient to present fact issue for jury.
Headnotes as approved by Holmes, J.
APPEAL from the Circuit Court of Copiah County; TOM P. BRADY, Judge.
Arrington Arrington, Hazlehurst; Watkins Eager, Jackson, for appellant.
I. The Court below committed error in failing and refusing to direct a verdict for appellant. Auch v. New Hampshire Fire Ins. Co. (Pa.), 65 Dauph 335; Camden Fire Ins. Assn. v. New Buena Vista Hotel Co., 199 Miss. 585, 24 So.2d 848, 26 So.2d 174; Cotton Bros. Cypress Co., Ltd. v. Home Ins. Co. of N.Y. (La.), 84 So. 792; Coyle v. Palatine Ins. Co., Ltd. (Tex.), 222 S.W. 973; Gelber v. Paramount Fire Ins. Co. (Mo.), 219 S.W.2d 871; LaBris v. Western Natl. Ins. Co., 59 S.E.2d 236; Loyola University v. Sun Underwriters Ins. Co. of N Y, 93 F. Supp. 186; Newark Trust Co. v. Agricultural Ins. Co., 237 Fed. 788; New York Underwriters Ins. Co. v. Sproles (Tex.), 73 S.W.2d 857; Pacific Natl. Fire Ins. Co. v. Doby, 220 Miss. 670, 71 So.2d 449; Parito v. Northern Ins. Co. of N.Y., 69 N Y Supp. 611, 189 Misc. 204; Parish v. County Fire Ins. Co. of Philadelphia, 134 Neb. 563, 279 N.W. 170; Travelers Fire Ins. Co. v. Taylor, 171 F.2d 203; Unobskey v. Continental Ins. Co., 86 A.2d 160; Williams v. Detroit Fire Marine Ins. Co., 280 Mich. 215, 273 N.W. 452; Wootton Hotel Corp. v. Northern Assur. Co., Ltd., 57 F. Supp. 112; Couch's Cyclopedia of Insurance Law, Sec. 1295.
Armstrong Hoffman, Hazlehurst, for appellee.
I. The Court below was correct in refusing to direct a verdict for appellant.
A. No motion for a new trial having been filed, and the only question involved being as to whether a directed verdict should have been granted, every material fact which there is substantial evidence to establish, either directly or by reasonable inference, should be treated as proved in favor of appellee. Clark v. State, 206 Miss. 701, 39 So.2d 783, 40 So.2d 591; Columbian Mutual Life Ins. Co. v. Gunn, 173 Miss. 897, 163 So. 454; Gilmer v. Gunter (Miss.), 46 So.2d 447; Hercules Powder Co. v. Thompson, 201 Miss. 608, 29 So.2d 823; Milner Hotels, Inc. v. Brent, 207 Miss. 892, 43 So.2d 654.
B. A verdict cannot be directed where questions for the jury are involved.
(1) The evidence, when viewed in the light most favorable to plaintiff, was sufficient to make a jury question as to whether or not there was a windstorm. Anno. 166 A.L.R. 381.
(2) The evidence when viewed in the light most favorable to plaintiff was sufficient to make a jury question as to whether or not the damage was caused by said windstorm.
(3) The evidence, when viewed in the light most favorable to the plaintiff, with reference to the insurance policy, as to windstorm and damage was sufficient for submission to the jury. 29 Am. Jur., Insurance, Sec. 1526 p. 1148; 88 C.J.S., Sec. 259 p. 695.
(4) The evidence is sufficient for jury question even as to interior damage. Howard Fire Ins. Co. v. Norwich N.Y. Transp. Co., 12 Wall (U.S.) 194, 20 L.Ed. 378; Miller v. Farmers Mut. Fire Ins. Assn. of N.C., 198 N.C. 572, 152 S.E. 684; National Union Fire Ins. Co. v. Harrower, 170 Ark. 694, 280 S.W. 656; New York Underwriters Ins. Co. v. Sproles (Tex.), 73 S.W.2d 857; Pennsylvania Fire Ins. Co. v. C.F. Sikes (Okla.), 168 P.2d 1016, 166 A.L.R. 375; Trexler Lumber Co. v. Allemonnia Fire Ins. Co. of Pittsburg, 289 Pa. 13, 136 A. 856; 29 Am. Jur., Insurance, p. 781.
C. Mississippi decisions uphold position of plaintiff. Kurn v. Fondren, 189 Miss. 739, 198 So. 727; Pacific Natl. Fire Ins. Co. v. Doby, 220 Miss. 670, 71 So.2d 449; Vol. XIV, Mississippi Digest, Trial, Key 139 (1).
APPELLANT IN REPLY.
I. The evidence was not sufficient for submission to the jury the question of whether appellee's damage resulted from the windstorm. Camden Fire Ins. Assn. v. New Buena Vista Hotel Co., 199 Miss. 585, 24 So.2d 848, 26 So.2d 174; Coyle v. Palatine Ins. Co., Ltd. (Tex.), 222 S.W. 973; Dr. Pepper Bottling Co. v. Gordy, 174 Miss. 392, 164 So. 236; LaBris v. Western Natl. Ins. Co., 59 S.E.2d 236; Miller v. Farmers Mut. Fire Ins. Assn. of N.C., 198 N.C. 572, 152 S.E. 684; Mutual Benefit Health Acc. Assn. v. Johnson (Miss.), 186 So. 297; National Union Fire Ins. Co. v. Harrower, 170 Ark. 694, 280 S.W. 656; Newark Trust Co. v. Agricultural Ins. Co., 237 Fed. 788; New Orleans Northwest R.R. Co. v. Jackson, 140 Miss. 375, 105 So. 770; New York Underwriters Ins. Co. v. Sproles (Tex.), 73 S.W.2d 857; North British Mercantile Ins. Co. v. Sciandra (Ala.), 54 So.2d 764; Pacific Natl. Fire Ins. Co. v. Doby, 220 Miss. 670, 71 So.2d 449; Parish v. County Fire Ins. Co. of Philadelphia, 134 Neb. 563, 279 N.W. 170; Parito v. Northern Ins. Co. of N.Y., 69 N.Y. Supp. 611, 189 Misc. 204; Pennsylvania Fire Ins. Co. v. C.F. Sikes (Okla.), 168 P.2d 1016, 166 A.L.R. 375; Travelers Fire Ins. Co. v. Taylor, 171 F.2d 203; Trexler Lumber Co. v. Allemonnia Fire Ins. Co. of Pittsburg, 289 Pa. 13, 136 A. 856; Unobskey v. Continental Ins. Co., 86 A.2d 160; Yazoo M.V.R.R. Co. v. Lamensdorf, 180 Miss. 426, 178 So. 80.
This is an appeal from a judgment of the Circuit Court of Copiah County in favor of the appellee and against the appellant for $300. The action was brought by the appellee against the appellant on a policy of insurance issued to the appellee by the appellant covering his dwelling in Georgetown, Mississippi, and extending the coverage to include direct loss by windstorm. The policy contained the following additional provision:
"This company shall not be liable for loss to the interior of the building or the property covered therein caused, (a) by water, 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 water, rain, snow, sand or dust entering the building through openings in the roof or walls made by direct action of wind or hail or (b) by water from sprinkler equipment or other piping, unless such equipment or piping be damaged as a direct result of wind or hail."
At the conclusion of the evidence, the trial court denied the appellant's request for a peremptory instruction, and the case was submitted to a jury, resulting in a verdict in favor of the appellee for $300, the full amount sued for, and judgment was entered accordingly. There was no motion for a new trial. The sole contention on this appeal is that the trial court erred in denying the appellant's request for a peremptory instruction.
(Hn 1) It is too well established by the numerous decisions of this Court to require the citation of authorities that in determining whether a directed verdict should be granted the evidence must be taken most strongly in favor of the party against whom it is asked, and every material fact which there is substantial evidence to establish, whether directly or by reasonable inference, should be treated as proven in his favor.
(Hn 2) Applying this principle, and in the light of the evidence which we have carefully considered, we are of the opinion that the evidence on the part of the appellee was amply sufficient to present a question of fact for the jury, and that the trial court committed no error in denying the appellant's request for a peremptory instruction. It can serve no good purpose to relate the evidence in detail. The judgment of the court below is accordingly affirmed.
Affirmed.
Roberds, P.J., and Hall, Kyle and Gillespie, JJ., concur.