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RICHMAN v. HOME INS. CO. N.Y. (01/20/53)

January 20, 1953

RICHMAN
v.
HOME INS. CO. OF N.Y.



COUNSEL

Charles Polis and Philip S. Polis, Philadelphia, for appellant.

Horace Michener Schell, Philadelphia, for appellee.

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

Author: Dithrich

[ 172 Pa. Super. Page 384]

DITHRICH, Judge.

In this action in assumpsit based upon a water damage insurance policy, a jury returned a verdict in favor of defendant-insurer. This appeal is from the order of the court below overruling plaintiff's motions for judgment n. o. v. and a new trial.

The policy in question insured 'against all Direct Loss and Damage caused solely by the accidental discharge, leakage or overflow of Water * * * from within the following source or sources: * * * [inter alia] Rain or Snow Admitted Directly to the Interior of the Building through Defective Roofs, Leaders or Spouting, or by Open or Defective Doors, Windows, Show Windows,

[ 172 Pa. Super. Page 385]

Skylights, Transoms or Ventilators, except as herein provided * * *.' But it specified that certain hazards were not covered, among them being 'loss or damage caused directly or indirectly, (a) by seepage, leakage or influx of water through building walls, foundations, lowest basement floors, sidewalks or sidewalk lights; or (b) by floods, inundation, backing up of sewers or drains, or the influx of tide, rising or surface waters; * * *.'

Plaintiff, who conducted a children's-wear business at 5701 Lebanon Avenue in the City of Philadelphia, produced evidence tending to show that a water damage loss she sustained, agreed by the parties to be $1150.45, was covered by the clause of the policy insuring against damage by rain. The defense was that the loss was occasioned by hazards not covered by the policy. Being an affirmative defense resting on exceptions or exclusions in the policy, the burden was cast upon defendant to establish it. Armon v. Aetna Casualty & Surety Co., 369 Pa. 465, 87 A.2d 302.

The jury found specially that the loss was not caused by rain being admitted directly to the interior through a defective door and open windows, as contended by plaintiff, but was cause directly or indirectly (1) by seepage through building walls, foundations and sidewalks and (2) by the influx of surface waters or the backing up of sewers and drains. The cause of the loss being a factual matter, cf. Murphy v. Insurance Co. of North America, 355 Pa. 442, 50 A.2d 217, if the evidence, when viewed in the light most favorable to defendant, is sufficient to support the findings and verdict of the jury, we must hold that defendant has met the burden imposed upon it and that plaintiff cannot recover.

Appellant's shop is in the basement of a building, located at the northwest corner ...


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