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Brindley v. Firemen''s Insurance Co.

Decided: March 25, 1955.


Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.


This is an appeal from a judgment entered in favor of plaintiffs for $443 in an action in the Mercer County District Court tried by the court without a jury upon the "extended coverage endorsement" provisions of fire insurance policies issued by defendants, particularly as they insured against loss by windstorm. Plaintiffs own a beachfront house at Lavallette. They claim that it sustained damage covered by the contracts of insurance here in question as a result of a very severe wind and rain storm on November 6, 1953. The damages are said to include shingles blown from the roof and side, a television antenna torn down, linoleum on the floors damaged by water, a storm door blown off and sand blown high against the rear of the building, requiring its removal and causing such scaling of the exterior paint as to necessitate repainting the exterior. The district court found for the plaintiffs in various amounts allocable to each of the items of damage mentioned.

The defendants appeal, asserting (1) the losses were not proven to have been within the coverage delineated by the policies; (2) conditions precedent as to notice and proofs of loss were not complied with by plaintiffs. It is represented to us by defendants that their appeal is impelled by the circumstance that the construction of a windstorm policy in such a situation as this has not had prior adjudication in this State.

The factual background afforded by the appendix is sparse. There is unfortunately almost as much colloquy as testimony. It appears that the storm on November 6, 1953 produced a "very high tide." Mr. Brindley testified that when he got to the property the morning after the storm he observed "that there were four houses washed out to sea" and that "the boardwalk was all down in front of my house"; that the ocean was "very high" but the "water had subsided some"; and that sand was blowing and "piling up in back of the house." He was not at the house during the day of the storm. There was no eye-witness to the direct action of the storm on the property. The witness Bloom lives in Lavallette and was there on November 6. He testified there was "a lot of wind and a lot of rain," a "hurricane." But he did not see the property in question until five days later.

Mr. Brindley testified that he purchased the building November 5, 1951 and rebuilt it practically entirely, including repairs to the roof and asbestos shingles on the outside. The day after the storm he found

"* * * Sand blown up under the eaves. The doors were completely barred from entrance * * * the sand was blown against the doors * * * The shingles were off the roof. Water was in a pool on the floor of the bedrooms. The living room ceiling was damp * * * Water covered nearly two thirds of the living room floor. New shingles were cracked. The aerial was down. The screen door was blown off or missing * * *."

Objection by defendant to the use of the word "blown" by the witness as calling for a conclusion as to the cause of the damage was overruled. Over objection the witness was permitted to state that the cause of the damage was "the storm."

The witness Bloom testified that he had been working on a new porch for the building "just prior" to the storm and that five days after the storm he noticed "storm damage"; "shingles missing on the roof. Shingles missing on the sides of the building. Sand blown all over." A motion to strike as to the expression "blown" was denied. He also said the floors were wet and the ceilings damp.

The witness Solan testified that the day after the storm he noticed "water on the floor" in the house; that the floors were "warped"; and that the ceiling of the first floor had a "discoloration, black, a rust color." The antenna was "torn from the house," there were "some shingles blown off or some shingles missing" on the roof and side of the house. The screen door was missing. The sand was piled six feet high in the rear of the house. Two days after the storm he observed that the "paint was peeling from the house." This testimony was unsuccessfully objected to as calling for conclusions.

Another witness testified that four weeks after the storm he observed the linoleum on the floor "bent up and irregular" and "curled at the corners." He noticed that "the white paint" on the exterior "wasn't in very good shape."

Defendants offered no testimony at the trial. They urged then and repeat on appeal that the proofs offered, exclusive of incompetent conclusions as to cause, did not establish sufficiently for submission to a fact finder that the damage was attributable to causes within the coverage and not reserved by exclusionary provisions in the policies. The ...

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