Opinion
23705.
ARGUED OCTOBER 10, 1966.
DECIDED OCTOBER 20, 1966. REHEARING DENIED NOVEMBER 3, 1966.
Certiorari to the Court of Appeals of Georgia — 114 Ga. App. 166 ( 150 S.E.2d 356).
Hudson Stula, Jim Hudson, Joseph J. Gaines, Rupert A. Brown, for appellant.
Erwin, Birchmore Epting, Eugene A. Epting, for appellee.
Where, under the evidence, it is possible that the antenna was caused to fall by ice, defective anchorage, or windstorm, it authorized the jury to find that windstorm was the cause where there was evidence to show that the wind blew 30 miles per hour the day before the damage was discovered, the antenna fell in the direction the wind was blowing, and the guy wire from the opposite direction was torn loose, and the antenna punctured the roof making holes, which could not have been done after the ice formed.
ARGUED OCTOBER 10, 1966 — DECIDED OCTOBER 20, 1966 — REHEARING DENIED NOVEMBER 3, 1966.
This case was fully reported in American Ins. Co. v. Guest Printing Co., 114 Ga. App. 166 ( 150 S.E.2d 356). The certiorari writ was granted because of the alleged erroneous holding of the Court of Appeals in reversing the lower court judgment denying a motion for judgment notwithstanding the verdict, since that court held that the evidence pointed to equally inconsistent theories, thereby being insufficient to show the loss of the plaintiff was covered under his policy of insurance. The grounds of complaint are: (1) the court substituted its conclusions for those of the jury as to the evidence by undertaking to reweigh the same, thereby usurping the function of the jury; (2) misapplied a stated principle of law; and (3) failed to follow well-known decisions of this court in holding that the evidence, being inconsistent as to different theories, proved nothing, there being evidence to support the verdict and judgment.
The policy excluded loss "caused directly or indirectly by frost, cold weather or ice (other than hail), snow, or sleet, whether driven by wind or not." The policy likewise stated that a loss caused by rain, snow, etc., would not be covered unless it was actual damage to the roof by direct action of wind or hail, and then the insurer would be liable for loss by rain, snow, etc., entering through openings in the roof or walls made by the direct action of the wind or hail. Necessarily the evidence in the record will control the decision in this case.
The plaintiff's right to recover under the policy of insurance depends upon a finding of fact that the antenna was blown down by a windstorm, and that the water which caused the damage passed through the holes made in the roof by the fall of the antenna. Discussing this point the Court of Appeals pointed out that the case of the fall of the antenna could have been (1) accumulation of ice thereon, (2) improper anchorage, or (3) windstorm. That court then erroneously concluded that any one of these causes was equally as likely as the others, and applied the rule that in that event recovery is unwarranted, citing Camp v. Emory University, 95 Ga. App. 442 ( 98 S.E.2d 66); Collins v. Phillips, 99 Ga. App. 13 ( 107 S.E.2d 275); Bartell v. Del Cook Lmbr. Co., 108 Ga. App. 592, 601 ( 133 S.E.2d 903).
We hold that these causes were not equally probable. The inspector of the roof just a day or so previously reported no antenna down, and since his purpose was to look for holes, he would undoubtedly have reported a fallen antenna and the holes made in one roof by its fall. Since the antenna punctured holes in the roof, this must have been done before the formation of ice. And finally even if the anchorage wire was not secure, the fact that the antenna fell in the direction the wind was blowing, there being evidence the wind blew 30 miles per hour on or about the time it fell, which could have uprooted the guy wire, which was in the opposite direction, this reasonably points to the windstorm alone as the cause for the fall of the antenna, and hence this is as the jury — the weighers of the evidence — found more likely than the other theories. Consequently, the Court of Appeals erred in applying the rule of law to these facts, thus reaching an erroneous judgment. We agree with one of the witnesses who said, "the best possibility" was that the antenna was blown down by the wind. The evidence authorized the verdict for the plaintiff, and the Court of Appeals erred in its judgment reversing the judgment denying the defendant's motion for judgment in its favor notwithstanding the verdict against it.
Judgment reversed. All the Justices concur.