Stuart A. Culbertson, Meadville, for appellant.
J. Perry Eckels, Meadville, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 169 Pa. Super. Page 454]
Frank Styborski, appellee, instituted this action in assumpsit to recover for damages to his barn under the provisions of a policy of insurance issued by Hartford Fire Insurance Co., appellant, insuring appellee against loss by windstorm. A jury rendered a verdict for the appellee in the amount of $1,500, and the insurer now appeals from the dismissal of its motions for a new trial and judgment n.o.v.
Appellant contends that the evidence is insufficient to warrant the submission of the case to a jury, and that there was insufficient evidence offered by appellee to establish that the damage was proximately caused by windstorm and not by a snowstorm.
The provisions of the insurance policy, which are pertinent here, insured appellee 'against all direct loss and damage by windstorm', but provided that the insurer shall not be liable 'for loss or damage whether incidental to a windstorm, cyclone and/or tornado or caused by frost or cold weather; nor for loss or damage caused directly or indirectly by cloudbursts, explosion or lightning. * * *' The policy also provided that the insurer shall not be liable 'for loss or damage caused by rain and/or snow, whether driven by wind or not, unless any building herein described shall first sustain an actual opening in roof and/or walls by the direct force of a windstorm * * * and shall then be liable only for such loss or damage * * * as may be caused immediately by rain and/or snow entering the building through openings in roof or wall as a direct result of such windstorm. * * *'
Since the appellee has a jury verdict in his favor, it is our duty, on review, to examine the testimony in a
[ 169 Pa. Super. Page 455]
light most favorable to appellee and to give to him the benefit of every fact and inference of fact pertinent to the issue which may reasonably be deduced from the evidence. Randall v. Stager, 355 Pa. 352, 354, 49 A.2d 689. So examining the testimony, it establishes that on March 21, 1945, appellee was the owner of a barn situate in Cambridge Township; that on that date the barn was damaged by a violent and tumultuous windstorm and that a portion of the roof was torn off, timbers were broken, the frame was sprung and the barn damaged to the extent that it could not be repaired without completely rebuilding the same. Appellee called several witnesses in support of his allegation that a windstorm was the sole and proximate cause of the damage. Frederick Noble testified that he was in the barn on the day in question to remove hay; that 'an awful strong wind came up'; that 'the boards started to come in under the haymow, and it began to crack and groan, the whole barn did'. He was asked what if anything happened to a portion of the roof and he replied: 'A. Well, it took some of it off and broke some of the rafters * * * A. It broke one of the big timbers * * * A. We got out of there as fast as we could get out'. Edward Styborski, a son of appellee, testified that on the day in question he also was working in the barn loading hay and that '* * * we got pretty near half of a load on when all at once the wind came and I saw that whole barn just shift right over, and I thought sure it was going to come down on us'.
Another son of appellee, Alex Styborski, testified that he was in the barn pitching hay and while so loading the hay 'a sudden gust of wind came up and you could hear the barn groan and creak and it broke that main beam on the side. And the rafters'. The witnesses also testified to the damage done to the barn, the broken and cracked ...