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HIGGINSON v. FIREMAN'S FUND INSURANCE CO. (06/11/58)

June 11, 1958

HIGGINSON
v.
FIREMAN'S FUND INSURANCE CO., APPELLANT.



Appeal, No. 83, Oct. T., 1958, from judgment of Municipal Court of Philadelphia County, April T., 1955, No. 466, in case of Joseph G. Higginson et ux. v. Fireman's Fund Insurance Co. Judgment affirmed; reargument refused June 28, 1958.

COUNSEL

Albert L. Bricklin, with him Bennett & Bricklin, for appellant.

Mervin J. Hartman, with him Busser & Bendiner, for appellees.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (hirt, J., absent).

Author: Watkins

[ 186 Pa. Super. Page 651]

OPINION BY WATKINS, J.

This is an action in assumpsit, based on the provisions of an extended coverage endorsement of a fire insurance policy, insuring the appellees from damage suffered by windstorm.

The appellee, Lois Higginson, testified that on the morning of October 11, 1954 the brick chimney attached to her dwelling was erect and in good condition. When she returned from work that evening she found a gaping hole in the kitchen roof and debris from the chimney strewn throughout the kitchen. The contractor who repaired the damage testified that "the chimney had fallen or had been blown" through the kitchen roof causing the damage. He also testified that "it wasn't brand new and it wasn't probably old, but it was of average age." The appellees offered into evidence a certified copy of the weather report for the date of the accident indicating that the wind velocity for that date was 18 miles per hour with gusts of 22 miles per hour.

The appellant insurance company offered testimony that the chimney collapsed from corrosion of the bricks as a result of old age and depreciation.

The jury returned a verdict for appellees for $597 and after motions by the appellant for a new trial and judgment non obstante veredicto were dismissed by the court below, this appeal followed.

The appellant complains generally of the court's action in submitting the case to the jury and specifically of the instruction to the jury that "Any wind, strong and sustained enough to damage the insured property, is a 'windstorm' within the meaning of the term as used in the policy and within the contemplation of the parties."

The extended coverage provision reads as follows: "The coverage of this policy is ...


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