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ADAMS APPLE PRODUCTS CORP. v. NATIONAL UNION FIRE INS. CO. PITTSBURGH ET AL. (01/17/52)

January 17, 1952

ADAMS APPLE PRODUCTS CORP.
v.
NATIONAL UNION FIRE INS. CO. OF PITTSBURGH ET AL.



COUNSEL

Lemuel B. Schofield, Philadelphia, Douglass D. Storey, Harrisburg, for appellants.

Harry Shapiro, David V. Shapiro, and Shapiro, Rosenfeld & Stalberg, Philadelphia, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Ross

[ 170 Pa. Super. Page 270]

ROSS, Judge.

Adams Apple Products Corporation instituted separate actions of assumpsit against each of the four defendant insurance companies to recover for damage to its property alleged to have been caused by windstorm. By agreement of counsel the four actions were consolidated for trial, and after jury verdicts were rendered for the plaintiff against each defendant in the amount of its proportionate share of the loss with interest, and the defendants' motions for judgments n.o.v. and new trials were refused, these appeals were taken.

The plaintiff, engaged in the canning of apples, maintained its plant at Aspers in Adams County, Pennsylvania. The structures comprising the plaintiff's plant were located on land rising to the east away from the tracks of the Reading Railroad, which at this point run generally north and south. Near to, and parallel with, the railroad right of way were a canning factory, boiler room and warehouse. About half way up the slope was a frame 'vinegar house'. Near the top of the slope, about 100 feet from the railroad tracks, and extending along the slope parallel to them, were two rows of wooden bins used by the plaintiff to store apples. One row of these bins was about 200 feet long, and the other, a few feet farther up the slope, was about 100 feet long. The construction was of wooden slats of random width from 2 to 6 inches, spaced about 1 inch apart and resting upon heavy wooden posts or pilings sunk in the ground. There were 42 units in the two rows, each bin being about 15 feet square and between 6 and 7 feet high. The bins had been constructed in 1940, and, according to the testimony of a witness for the plaintiff, 'were in very good condition'.

Each of the defendants had issued to the plaintiff a policy of insurance indemnifying it against 'direct

[ 170 Pa. Super. Page 271]

    loss or damage by windstorm, cyclone, tornado and hail'. At the trial the plaintiff sought to establish that 14 of its bins and their contents were damaged as a result of a 'windstorm' which occurred sometime between noon on Saturday, October 26, 1946, and the following Monday morning.

Part of the plaintiff's evidence is unchallenged. When the last employe left its plant on Saturday, October 26, all of its storage bins were standing, filled with apples to about 80 per cent. of capacity. On Monday, October 28, 14 of the bins in the row nearest to the railroad tracks were down and parts and contents of them scattered down the slope for a distance of 70 feet. The posts or pilings upon which the demolished bins had rested were still standing, but leaned to the west.

No witness who saw the bins fall was produced by either side. The plaintiff called two witnesses whose testimony tended to establish that there had been a windstorm in the vicinity of its plant on Sunday, October 27. The first of these witnesses, Roy Adelsburger, a farmer who lived 3 or 4 miles from the plaintiff's plant, testified that on the day in question the wind 'blowed a door off [his] barn', that it tore paper off the end of the barn and blew down one of several heavy boards leaning against his fence. Plaintiff's other windstorm witness, Charles W. Pitzer, testified that on October 27 he drove his four-door Packard sedan from his home in Gettysburg to a truck terminal located about a half mile from plaintiff's plant. He stated that it was a very 'severe' night with the wind 'rather ...


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