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SHEARER v. INSURANCE COMPANY NORTH AMERICA (11/24/59)

November 24, 1959

SHEARER
v.
INSURANCE COMPANY OF NORTH AMERICA, APPELLANT.



Appeal, No. 184, March T., 1959, from judgment of Court of Common Pleas of Armstrong County, Dec. T., 1956, No. 312, in case of Chester G. Shearer et ux. v. Insurance Company of North America. Judgment affirmed. Assumpsit. Before GRAFF, P.J. Verdict for plaintiffs in amount of $9,000; defendant's motions for judgment n.o.v. and new trial refused, and judgment entered on the verdict. Defendant appealed.

COUNSEL

Alexander Unkovic, with him E.O. Golden, Ralph C. John, William G. Boyle, and Kountz, Fry & Meyer, for appellant.

Charles D. Coll, with him Harvey H. Heilman, Jr., for appellees.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.

Author: Musmanno

[ 397 Pa. Page 568]

OPINION BY MR. JUSTICE MUSMANNO

On May 17, 1955, Chester G. Shearer and his wife, Helena G. Shearer, owners of a seven-room brick dwelling house in North Buffalo Township, Armstrong County, purchased from the Insurance Company of North America a policy which insured their home against damage and destruction, inter alia, by explosion. On November 16, 1955, the house, according to the plaintiffs, was wrecked by an explosion which occurred 300 feet below the surface in the Cadogan Mine owned by the Allegheny River Mining Company. The Insurance Company refused to pay the indemnity claimed by the Shearers because, it said, their home was ruined not by explosion but by subsidence, a peril specifically exempted in the policy. An action of assumpsit on the policy followed and the jury returned a verdict in favor of the plaintiffs, on which judgment was entered.

The defendant insurance company has appealed, asking for judgment n.o.v., or, in the alternative, a new trial. It is unnecessary to state that in an appeal of this kind, we are to evaluate the evidence as if we had heard it through the ears of the jury since they are the exclusive judges of the credibility of the witnesses and determine whom and what to believe.

A succinct scrivener reporting on the facts established before the jury would not be in error if he summarized as follows. The plaintiffs' home is built over subterranean holdings of the Allegheny River Mining

[ 397 Pa. Page 569]

Company. During the months of September, October, and November, 1955, that company was engaged in digging out coal deposits lying beneath the Shearer property. In extracting coal, using deep pit mining methods, it is impossible, initially, to obtain the entire quantity of coal in any given area, since pillars (about 30 feet deep) must be left to support the roof, while the digging and loading is being done. However, at a certain point, the miners retrace their steps, removing pillars as they withdraw, in this manner exhausting the entire vein. This withdrawal is known as a "retreat operation." To reclaim a pillar, it is undercut to a depth of six or seven feet, holes are drilled into the solid face of the coal, dynamite sticks or other explosives are tamped into the holes and then exploded. The pillar crumbles and the coal is taken away.

Beginning in September and continuing through November 16, 1955, the ground above the Cadogan Mine vibrated and shook to violent subterranean activity. The tremors were not of such intensity as to fracture the surface of the soil or do any considerable observable damage, although at times sleeping families were awakened from their slumbers, dishes rattled in the cupboards and windows vibrated to the invisible underground detonations. On the night of November 16, 1955, however, at about 10:20 o'clock there occurred a blast of such proportions and fury as to drive inhabitants into the streets to inquire what had happened. Many thought the furnaces in their houses had exploded. One witness described the audible and physical manifestations of violence as being one hundred times more intense than any of those experienced during the preceding two months.

In consequence of the terrestrial disturbance of November 16th the basement walls in the Shearer house cracked, walls opened up, ceilings and floors split, doors ...


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