Beakes v. Commercial Union Assurance Co. — 47 N.Y. St. Rep. 406

Majority

p. 406

Henry L. Beakes, App’lt, v. The Commercial Union Assurance Co., Limited, Resp’t.

(Supreme Court, General Term, Second Department,

Filed July 22, 1892.)

Headnote

Insurance (Fire)—Lightning—Verdict.

The policy in question covered direct loss by lightning and excluded loss

p. 407

by cyclone tornado and wind storm. The building insured was destroyed during a rain storm accompanied by lightning, thunder and a hurricane. There was no fire, but there were evidences oí heat and the exertion of great force, and of injury by the wind. The amount claimed was over $2,000, and the jury rendered a verdict for §100. Held, that under these circumstances the amount of damage to "be attributed to the lightning alone was not so certain that an appellate court could decide that the amount allowed therefor by the jury was inadequate.

Appeal from judgment in favor of plaintiff, entered upon ver•dict, and from order denying plaintiff’s motion to set aside the verdict for inadequacy and for a new trial.

W. F. O'Neill, for applt; Butler, Stillman & Hubbard, for resp’t.

—This is an action upon a policy of fire insurance, which covered direct loss and damage caused by lightning and excluded loss and damage by cyclone, tornado, and wind storm.

The insurance was upon several buildings, and considerable personal property, and the plaintiff claimed that two barns included in the policy were destroyed by lightning.

The defense was that the barns were destroyed by a tornado.

The proof was that the barns were destroyed during a rain ■storm accompanied by lightning, thunder and a hurricane. There was no ignition and no fire, but there were evidences of the presence of heat, and of the exertion of great force. There were also evidences of injury by the wind for the buildings were prostrated.

The damage was large, and the amount claimed in this action was $2,747.50.

The case went to .the jury upon a charge that the plaintiff could recover for the damage caused by the lightning, but not for the destruction resulting from the force of the wind.

The jury rendered a verdict in favor of the plaintiff for one hundred dollars.

The plaintiff moved for a new trial, and to set aside the verdict for inadequacy, and the motion was denied and he has appealed to the general term for a new trial.

Our difficulty is that we cannot certainly say the verdict is inadequate, because we cannot say how much 'of the plaintiff’s damage resulted from lightning. That question was within the peculiar province of the jury and was left to that body for determination.

The proof of the action of lightning upon the buildings was only inferential, and drawn from the evidence of the appearance ■of the effect of heat around the soldering of the tin sheets which covered the cupolas. Some of the foundation stone were thrown nut of place and their removal from their position was by the plaintiff attributed to the action of electricity.

So the amount of damage which can be attributed to the action of the lightning is not so certain that we can estimate it and decide that the amount allowed for it by the jury was insufficient.

It will be seen that the policy covers only direct loss and damage caused by lightning, and that language is quite restrictive.'

A rain storm in the summer months in this lattitude, accompanied with lightning and thunder, is usually brought up and attended

p. 408

with high wind, and where a current of electricity passes through a building during such a commotion of the elements without causing a fire, and the structure is thrown down af the same time, it is plainly difficult to determine the damage to be attributed to the lightning alone.

In such a state of uncertainty an appellate tribunal would not feel at liberty to interfere with the verdict of a jury which settled .the question.

The judgment and order denying the motion for a new trial should be affirmed, with costs.

Cullen, J., concurs; Barnard, P. J., not sitting.