Summary
holding that plaintiff's circumstantial evidence, including two witnesses who saw lightning strike near plaintiff's pool and plaintiff's testimony that the pool was crushed when he returned home after the storm, was enough for a jury to conclude that lightning struck and destroyed the pool
Summary of this case from Crews v. Tahsin Indus. Corp. U.S.Opinion
42483.
SUBMITTED JANUARY 9, 1967.
DECIDED APRIL 18, 1967.
Action on insurance policy. Polk City Court. Before Judge Flournoy.
Matthews, Maddox, Walton Smith, John W. Maddox, for appellant. Wayne W. Gammon, for appellee.
1. When a reasonable mind may accept the circumstantial evidence presented as adequate to support a finding in favor of one of the parties on an issue of fact, a verdict based on such finding is authorized even though the evidence may also reasonably support a finding in favor of the other party on this issue of fact.
2. The verdict for penalty and attorney's fees was not authorized.
SUBMITTED JANUARY 9, 1967 — DECIDED APRIL 18, 1967.
Clyde Tuck brought his petition in the City Court of Polk County, alleging that United States Fire Insurance Company was indebted to him in the amount of $4,666.66, in that it had issued to him an insurance policy insuring his dwelling and other properties in Cedartown against losses by fire, lightning and other perils; his swimming pool was insured against loss by lightning for $2,500; on July 31, 1964, the insured property, having a value in excess of $2,500, was totally destroyed by lightning; he gave due notice of the loss to the defendant insurance company and otherwise performed all of the conditions imposed on him by the policy; the defendant, more than 60 days prior to filing the suit, denied liability and refused a proof of loss; payment was refused by the defendant in bad faith with no reason given, and he was entitled to recover $2,500 for his loss, $666.66 for penalties, and $1,500 for attorneys fees, for which he prayed. A copy of the insurance policy was attached as an exhibit and made a part of the petition.
The defendant insurance company answered the petition, admitting jurisdiction, the issuance of the policy, the nature and extent of the insurance, and the receipt of notice of the loss and the denial of liability, but denying all other allegations of the petition, and prayed judgment in defendant's favor. Thereafter the case went to trial.
The swimming pool was located 30 to 40 feet west of plaintiff's house, was constructed by a house building contractor in 1959. It was rectangular in shape, 20 feet by 40 feet inside, 10 feet deep at the deep end and 2 feet deep at the shallow end. It was constructed with a concrete bottom, concrete block sides with a single-layer brick veneer facing, and tile rim. It had a marblite plaster covering the brick facing to seal it. There was no steel reinforcement of the concrete blocks. The pool had a concrete apron around the north, east and south sides, and there was a 4-foot high chain link fence around the pool, with 2-inch steel pipe fence posts, the fence posts being 4 feet from the edge of the pool.
The plaintiff testified he had never previously had any trouble with the pool, the walls had never bowed, and he had detected no leakage. He further testified that there were no cracks in the pool or concrete slab or walkway that extended along and about the east wall of the pool, had never been any, none had been grouted, and there was no evidence of any having been repaired; he swam in the pool on July 29, 1964, and it was full of water on July 30, 1964; he had emptied and scrubbed the pool the Saturday before and detected no damage.
He further testified that his house burned in the late evening of July 30, 1964, or early morning of July 31, 1964; he was in his house for a few minutes about 5 or 5:30 p. m., on July 30, 1964, but did not look at his pool; he left his home then and went to Alabama returning about 1:30 or 2 a. m. on July 31, 1964; no one else was at home during the intervening time; when he returned to Cedartown, he found the fire trucks going to his house, and found the center part of his house aflame; someone told him his swimming pool had burst; he then saw some of the pool walls had collapsed, cracks were in the bottom, and most of the water was gone; he had a television antenna on the top of the center of his house, and one of four guy wires for the antenna was attached to the metal fence post at the southeast corner of the swimming pool; when he examined the pool area the morning after the fire the guy wire which previously was "dirty silver looking" was "kind of bluish black," as was the fence post; since then, the wire and fence post have gotten rusty while others have not; he examined the other three guy wires and they were not discolored; he didn't bring any of the wires to court; he didn't remember whether or not the antenna had fallen.
Dalton Bentley, a building contractor, testified: he built the Tuck house in 1958 and the pool in the spring of 1959; he resided in the house for approximately fourteen months and used the pool from the time it was constructed until he sold the premises to the plaintiff in 1960; the pool he described as having a concrete floor with six-inch concrete block walls faced with four-inch thick bricks; there were air spaces between blocks, and the brick and the blocks were tied together at regular intervals with wall ties; when he last saw the pool in 1960 there was no cracking or separation of the concrete apron; the only work done on the pool after its construction was the placing of a terra cotta cap on the top of its walls and that no grouting or other repairs on the pool had been necessary; in building the pool he made the excavation larger than the dimensions in order to give the man building its walls room enough to work. He further testified: "The back fill was brought in by dump truck, dumped and a combination of what went in on its own and what was shoveled, it was back filled against the wall. Then, oh, I'd say about ten days after it was back filled, we had a rain — I think it rained about a day and a half, and compacted the dirt in then. Then after that was done, I brought more dirt in, filled in that and packed it as it was filled in, and until it was brought up to ground level." He placed a concrete walk around three sides of the pool and an apron or patio on the east side; he filled in the excavation, allowed the dirt to settle, refilled it, tamped it and then waited six months and poured the concrete on it; in his opinion it would have been impossible for there to have been extensive voids along the pool's east wall. He gave as a basis for his opinion: "The dirt that was filled in was all fine dirt. It was dry when it was filled in, and then after that soaking rain, and refilling and tamping, there wouldn't have been any way in the world there could have been any air space in there."
Mrs. Lucy M. Robinson, a witness for the plaintiff, who at the time the pool collapsed lived approximately 200 feet from the Tuck home, testified; that an electric storm occurred on the date the pool was damaged; while she was standing at her window looking out at the storm a bolt of lightning came straight down and looked like it was right behind the plaintiff's house; and at the same time three or four lights in her house were blown out; she could not see the swimming pool from her window but the bolt came right down over the pool and it was a large bolt; she saw no smoke from the plaintiff's house or from the vicinity of his house, and it was several hours later when the house caught fire; later that night the witness went to the plaintiff's house which was on fire and upon reaching the back of the house found the pool caved in. She further testified that the rain that accompanied the electric storm was not hard; that "it was a good shower, but it wasn't what we might describe as a cloudburst, or really a downpour."
Mrs. Nan Casey Davis, who resided on a lot adjacent to the Tuck lot and approximately 75 feet from the swimming pool and approximately 90 to 100 feet from the plaintiff's house, testified as a witness for the plaintiff. She remembered the electric storm that occurred on the same afternoon the pool collapsed; she gave evidence that a "terrific flash" of lightning was followed by a terrible "blow;" she and her mother, who was visiting her, thought it struck in the witness' back yard and she went out in the back yard after the storm to see if it had done any damage to anything in her yard; she felt at the time this particular bolt of lightning had come in contact with something in the near vicinity of her home; she did not look over on the plaintiff's yard to observe whether damage had been done there. Her testimony was corroborated by her mother, Mrs. R. F. Casey, who was also sworn as a plaintiff's witness. Neither of these witnesses testified as to any heavy rain on the afternoon, either during the storm or after it was over. However, in regard to the rainfall Mrs. Casey testified: "Well, I just don't remember anything about the rain one way or the other. I am pretty sure we had it, because you usually do with a storm. You usually have some rain, and I am sure we had some rain, but the thing that impressed itself on my mind was the electrical storm."
Frank Rogers, a building contractor, graduate of the University of North Carolina, with 20 years experience in construction work and experience with laying cement, reinforced concrete, and brick and concrete blocks, testified: he had built two swimming pools, both under architects' plans and specifications; and had helped with another swimming pool, but he was not in the swimming pool business; that he had thoroughly examined plaintiff's pool four times, while plaintiff's insurance claim was being investigated shortly after his house fire; the pool walls were made of 6-inch hollow concrete blocks with a brick veneer facing; there was no reinforcement used in the block, and the block wall and brick wall were tied together by occasional wall ties in no pattern; that ties should have been in at least every other block course and at least every sixth brick; that normally the blocks were filled with concrete to give strength and stability to the walls. On cross examination the witness testified he examined the swimming pool about three months after it had collapsed; that he did not know whether the pool at the time of his inspection was in the same condition as when the collapsing occurred.
He further testified that, a condition behind the walls which contributed to and probably caused the collapse was the lack of dirt and untamped dirt in the back filling of the wall and under the concrete slab, where he found great voids (the size or number of which his testimony did not disclose); the effect of these voids and lack of back filling was that hydrostatic or water pressure within the earth would be so great it would make the wall collapse; water pressure increases appreciably with rainfall; he found numerous old cracks in the floor and walls of the pool; he saw cracks in the slab outside the pool had been grouted or repaired by filling in; that he had an opinion as to the cause of the collapse of the pool walls and slab, and it was the failure to properly backfill and tamp the backfill; he saw no evidence of this damage having been caused by lightning; he gave this information to Carl Wagner.
Allen Ivey, Chief Engineer for General Adjustment Bureau, a Georgia Tech graduate in mechanical and electrical engineering, with 10 years experience on the Georgia Tech research and faculty staff and as an engineer, who had no experience in building pools, testified: his job was to investigate various types of failures, and he investigated plaintiff's pool collapse on August 13, 1966, and later; he examined the pool for the purpose of determining the cause of the collapse; he found old cracks of at least one inch separation in the pool, some with paint in the cracks; he had an opinion that the cause of the cracks was settlement; he also found grouting of some cracks, that is, filling of cracks; he found voids beneath the slab and behind the walls, with insufficient compacting of backfills; the voids were about the size of a gallon bucket; he could remember three or four such voids in forty feet of earth that had encased the fallen wall; that when he first inspected the pool there was "a lot of dirt" in the same; that he did not appraise this dirt to determine whether it was enough to have filled the voids; according to his memory, the construction of the pool walls was inadequate in that the concrete blocks should have been 8 inches thick, the blocks should have been filled with concrete, and reinforced with steel rods, which they were not; this is what normal and proper construction would be; there were insufficient ties between the concrete block wall and the brick veneer; he had an opinion as to the collapse of the walls and walkway, and it was settlement of the walls, cracking them, and hydrostatic pressure behind the walls pushing them out into the pool; the slope of the ground was toward the pool and caused water pressure to build up behind the wall; rain would increase the pressure; a large rain over a short time would cause a sudden build up of pressure; that he directed his attention also to seeing if lightning could have caused the collapse; most of his work was investigating lightning claims and he had investigated 100 to 125 of them; he had done study in the field of lightning and the effects of lightning, and received instruction in it; lightning produces certain predictable and identifiable characteristics; he found no melting of metals or carbon deposits on the wire, fence or posts; the fence around the pool would serve as an excellent ground or lightning rod and protect the pool from lightning; the guy wire would have completely melted if lightning had passed through it. The witness also testified lightning has unpredictable characteristics "only because we don't understand it fully; in his opinion the pool damage was not caused by lightning; he imparted this information to Carl Wagner.
Ralph Ayers, local observer for the United States Weather Bureau, testified that: he kept daily records of the weather phenomena during July, 1964; that it rained 6.76 inches in Cedartown during that month; that the heavy rain was near the end of the month, with one extremely large rain of 2.76 inches falling in a two-hour period on July 29, 1964; that it was unusual for it to rain that much in a two-hour period. On cross examination he testified that when it rained that much in a two-hour period the surface water would tend to run off rather than soak in; that there had been heavier rainfall in the past three or four years "almost every year."
Carl Wagner, manager of the Rome office of General Adjustment Bureau with 13 years experience investigating fire and lightning claims, testified: he investigated plaintiff's loss the day after it was discovered; plaintiff claimed the pool damage was caused by lightning and Wagner looked for evidence of it; he examined the guy wires and fence post, and they showed no pitting, melting or burning, but were rusty; the wires and post showed no indication of lightning; the walls and bottom of the pool gave no indications of lightning damage; the plaintiff was present during the investigations and never pointed out any physical evidence of lightning.
The jury returned a verdict awarding the plaintiff $2,500 for damage to the swimming pool, $1,500 for attorney's fees and $250 for penalty.
The defendant made a motion for judgment notwithstanding the verdict or that, in the alternative, it be granted a new trial. The trial judge overruled the dual purpose motion, whereupon the defendant gave notice of appeal and later filed enumerations of error in this court.
1. The enumerations of error presented the appellant's contentions: (a) that the evidence was insufficient to support the verdict; (b) if sufficient to support a verdict of liability on the policy, the evidence was insufficient to support a verdict finding bad faith. The first of the contentions is based upon the premise that the evidence did not support the verdict's award to the plaintiff of a named amount as compensation for the loss of his swimming pool. This is a pivotal issue because the conclusion is inescapable that unless the plaintiff was entitled to recover for loss of the pool, the only loss for which he sued, there can be no valid assessment of penalties and attorney's fees based upon the refusal to pay the loss.
When this case came on for a hearing in this court, counsel for the appellant conceded: "The plaintiff introduced in evidence the policy for $2,500, the amount of damage to the swimming pool, $2,500 to $4,500, and the amount of reasonable attorneys fees for handling a case of this kind, $1,500 to $2,000. There was substantially no dispute as to these items."
Implicit in the quoted concession was the appellant's consent that the only remaining elements of proof necessary for the plaintiff's recovery for the amount of his loss was that the loss was caused by a hazard or risk within the provisions of the policy.
The above analysis of the issues for consideration is furnished in order to place the case in convenient posture for review.
Where, as in the case sub judice, the plaintiff sues upon an insurance policy to recover compensation for a loss he has admittedly sustained, the primary inquiry is whether the loss resulted from a hazard against which the policy afforded protection. Aetna Casualty Surety Co. v. Hanna, 224 F.2d 499 (53 ALR2d 1125). The policy upon which the plaintiff bases his recovery provided the protection for his swimming pool against no hazard or risk except "the perils of lightning." The petition to which the policy is attached alleged that the pool was destroyed by lightning. Defendant, appellant here, denied liability and insisted that lightning was not the cause of damage to the pool but that pressure, that is the presence of an accumulation of water by the walls of the pool, caused it to collapse.
The burden of proof was upon the plaintiff to prove by a preponderance of the evidence that lightning actually destroyed the swimming pool. Clouse v. St. Paul Fire c. Ins. Co., 152 Neb. 230 ( 40 N.W.2d 820, 15 ALR2d 1008). He was entitled to recover, if at all, upon satisfactory proof of this basic fact. However, in the case of Bunn v. Hargraves, 3 Ga. App. 518 (4) ( 60 S.E. 223) is the pronouncement: "This court has no power to determine that the preponderance of the evidence is in favor of one party to a cause rather than the other, or to award a new trial in any case where there is any evidence sufficient to support the verdict rendered." The rule for determining when the issue as to whether a risk or hazard within the coverage of the policy caused the insured's loss should be submitted to the jury is: "Only when the plaintiff's evidence does fail to prove the case as laid in the petition, without revealing as defense matter fatal to the cause pleaded, or where the evidence adduced by the defendant as a matter of law conclusively refutes the proof made of the plaintiff's case can a verdict for the defendant be directed. City of Commerce v. Bradford, 94 Ga. App. 284 ( 94 S.E.2d 160)." Moate v. H. L. Green Co., 95 Ga. App. 493, 500 ( 98 S.E.2d 185).
The Bradford and Moate cases, in substance, pronounce the principle that prima facie proof of the plaintiff's cause is sufficient to create an issue of fact and carry the case to the jury unless conclusively rebutted by other evidence. Necessary in the proof of a prima facie case is satisfactory evidence of every fact essential to the right of recovery, and in this case satisfactory evidence that the swimming pool was destroyed by lightning. In the case of Georgia R. Bkg. Co. v. Smith, 83 Ga. 626, 627 (6) ( 10 S.E. 235) it was held: "Prima facie evidence is such evidence as in judgment of law is sufficient, and if not rebutted remains sufficient. It may be rebutted by developing additional facts consistent with its truth, but tending to an opposite conclusion, or by proving it untrue or untrustworthy in whole or in some material part."
The standard for testing the sufficiency of circumstantial evidence, important in the decision of the case because much of the evidence was circumstantial, is found in the case of Old Colony Ins. Co. v. Dressel, 109 Ga. App. 465, 468 ( 136 S.E.2d 525): "When a reasonable mind may accept the circumstantial evidence presented as adequate to support a finding in favor of one of the parties on an issue of fact, a verdict based on such finding is authorized even though the evidence may also reasonably support a finding in favor of the other party on this issue of fact." In Old Colony Ins. Co. v. Dressel, 220 Ga. 354 ( 138 S.E.2d 886), this holding was approved. See: McCarty v. National Life c. Ins. Co., 107 Ga. App. 178, 182 ( 129 S.E.2d 408); Pippin v. Mut. Life Ins. Co. of N. Y., 108 Ga. App. 741, 750 ( 134 S.E.2d 446).
Ready-Mix Concrete Co. v. Rape, 98 Ga. App. 503, 511 ( 106 S.E.2d 429), factually similar in some aspects to the instant case, is precedent for the conclusion that visual observation is not essential in determining whether a particular force produced a given result.
The plaintiff's evidence concerning the cause of the pool's collapse came as near being direct as was possible, not to be so catalogued. This is obvious in the review of the testimony of Mrs. Robinson, a neighbor who resided across the street and approximately 200 feet distant from the plaintiff's dwelling house, that about 4:30 on the afternoon when the pool was allegedly destroyed, from a window in her home she watched an electric storm in progress and that a large bolt of lightning descended from the sky right behind the plaintiff's house (the pool was situated 30 or 40 feet to the rear of the house), straight down over the swimming pool, and at the same instant electric lights in her home were blown out.
Another witness, Mrs. Davis, who resided on the adjacent lot and approximately 75 to 100 feet from the swimming pool gave as her evidence at approximately that time a terrible flash of lightning descended and when it struck there was a terrible blow from which the vibration could be felt in her home. Coupled with this evidence is the testimony of the plaintiff that on the same day prior to the electric storm the pool was intact and full of water, and that when he returned from a business trip at about 1:30 the next morning he found the pool caved in and crushed like a watermelon that had been dropped. This was not direct evidence merely because it fell short of proving by an eyewitness the ultimate fact that lightning struck the swimming pool. Mrs. Robinson could not see the actual contact of the lightning with the pool, because her view of the pool was obscured by the plaintiff's house. Nevertheless, the plaintiff's evidence furnished facts from which a logical conclusion could be drawn that lightning did strike and destroy the pool. It measured up to the standard of sufficiency applied to circumstantial evidence recognized in Old Colony Ins. Co. v. Dressel, 109 Ga. App. 465, 468, supra; McCarty v. National Life c. Ins. Co., 107 Ga. App. 178, supra; Pippin v. Mut. Life Ins. Co. of N. Y., 108 Ga. App. 741, supra. Thus it appears there was satisfactory proof of the plaintiff's case.
The ruling that the plaintiff's evidence prima facie proved lightning caused the collapse of the pool is but the first step in passing upon whether the evidence as a whole authorized his recovery.
The next question to be considered is whether the defendant's evidence conclusively refuted the plaintiff's proof and demanded a verdict in its favor.
The defendants adduced no evidence in direct rebuttal to the plaintiff's proof that a bolt of lightning struck the pool, except the testimony of the defendant's adjuster, Mr. Wagner, and two witnesses, Mr. Ivey and Mr. Rogers, who testified that upon their inspection of the pool, made sometime after its walls fell, they discovered no sign that lightning caused the damage.
The defendants offered no direct proof to rebut the plaintiff's evidence that lightning actually struck the pool, but did submit evidence to show hydrostatic pressure was the probable cause of the pool's collapse. Mr. Ivey and Mr. Rogers testified that for various reasons the construction of the pool was not substantial and was faulty; that there were old grouted cracks in the walls of the pool; that voids or vacant spaces appeared in the earth that encased one of the walls before it fell; and that these voids were caused by a failure to properly tamp or compress the dirt about the pool when it was installed. They testified it was their opinion that the faulty construction, defects and failure to tamp the earth rendered the pool vulnerable to the pressure of rain water that had seeped into the earth. Upon the existence of these same conditions the two witnesses predicated the opinion that hydrostatic pressure actually caused the pool's collapsed.
The record discloses that the existence of some of these conditions was denied by the plaintiff and one of his witnesses. For instance, Mr. Bentley, who built the pool testified: "The back fill was brought in by dump truck, dumped and a combination of what went in on its own and what was shoveled, it was back filled against the wall. Then, oh, I'd say about ten days after it was back filled, we had a rain — I think it rained about a day and a half, and compacted the dirt in then. Then after that was done, I brought more dirt in, filled in that and packed it as it was filled in, and until it was brought up to ground level." He placed a concrete walk around three sides of the pool and an apron or patio on the east side; he filled in the excavation, allowed the dirt to settle, refilled it, tamped it and then waited six months and poured the concrete on it; in his opinion it would have been impossible for there to have been extensive voids along the pool's east wall. He gave as a basis for his opinion: "The dirt that was filled in was all fine dirt. It was dry when it was filled in, and then after that soaking rain, and refilling and tamping, there wouldn't have been any way in the world there could have been any air space in there." The plaintiff and Mr. Bentley testified that during the respective periods that each of them owned the pool there were no cracks in the pool and that none were grouted or repaired; the plaintiff further denied there were any cracks in the cement walk.
It further appears from the record that the pool stood and was in continuous use for six years before the electric storm occurred. This was material evidence that its construction was reasonably sturdy.
It is obvious that the defendant's evidence did not serve to conclusively refute the case made by the plaintiff concerning the cause of the loss, but at best only made an issue of fact to be solved by the jury. This the jury did and the verdict awarding compensation for the loss of the swimming pool will not be disturbed.
2. The final matter for consideration is whether the finding that the defendant was liable for penalty and attorney's fees was valid. The evidence would have authorized a verdict in accordance with the defendant's contentions. Therefore, under the holdings in U.S. Fidelity c. Co. v. Biddy Lumber Co., 114 Ga. App. 358, 359 ( 151 S.E.2d 466); St. Paul Fire c. Ins. Co. v. Postell, 113 Ga. App. 862 (2) ( 149 S.E.2d 864), and American Cas. Co. v. Seckinger, 108 Ga. App. 262, 264 (5) ( 132 S.E.2d 794), a finding of bad faith was not authorized. Evidence showing a reasonable and probable cause for refusing to pay the claim vindicates the good faith of the company as effectually as would a complete defense to the action. Interstate Life c. Co. v. Williamson, 220 Ga. 323, 326 ( 138 S.E.2d 668). Unless the penalty and attorney's fees are written off, a new trial will be necessary.
Judgment affirmed on condition. Frankum, P. J., and Deen, J., concur.