Warmcastle v. Scottish Union & National Insurance

Opinion by Mb. Justice Potteb,

The policies of insurance upon which this suit was brought were of the ordipary standard form, providing for indemnity against fire; but in addition thereto, liability for direct damage by lightning was assumed by a specific agreement attached to the policy, in the following words : “ This policy shall cover any direct, loss or damage caused by lightning (meaning thereby the commonly accepted use of the term lightning, and in no case to include loss or damage by cyclone, tornado or wind storm).”

It is perfectly clear that under this clause the insurer stipulated not only that it would be liable to the insured for direct loss or damage caused by lightning, but that it was also expressly excluded from any liability for damages caused by cyclone, tornado or wind storm.

The testimony seems to show some injury by lightning, and that great damage was also caused by wind. In order to re-' cover .under the terms of the policy, it was incumbent upon the plaintiff to distinguish between the two elements of damage. For that resulting from the lightning, he had a right to recover; but for that which was caused by the wind there was no liability whatever upon the part of the defendant. This is the clear and definite contract entered into by the parties and, any attempt to extend it beyond the terms expressly stipulated in the words of the policy would be to substitute a new agreement in its stead.

The'defendant’s counsel presented three points for charge, which sought to confine the verdict of the jury to the- direct damage caused by lightning, exclusive of that caused by the wind. These points were refused by the court, and the jury were instructed that they might take into consideration not *305 only the effect of the lightning but the subsequent injury by the wind, apparently upon the theory that the building was weakened by the lightning stroke, and thus rendered more susceptible to the effect of the wind. It is true that as a general principle the insurer is liable for all losses which result from or can be fairly attributed to the peril insured against, but it is equally true that the insurer may impose such conditions as it pleases, and while assuming the burden of indemnity against lightning, it may stipulate in the same connection against any liability for loss by wind or storm. This is just what was done by the terms of the policy in suit.

The defendant was entitled to an affirmance of the points which were refused. It may be difficult for the jury to draw the line between the damage caused directly by the lightning, and that caused by the wind; but it must be done, for there is no warrant in the policy for holding the defendant liable in any way for the damage caused by the wind storm.

The assignments of error are therefore all sustained; the judgment is reversed and a venire facias de novo awarded.