Moodey v. Connecticut Fire Insurance

[631]

MELVIN, J.

This is an appeal by defendant from an order denying its motion for a new trial. The policy was formally the same as those considered in

Fountain

v.

Connecticut Fire Insurance Co.,

158 Cal. 760, [139 Am. St. Rep. 214, 112 Pac. 546], and

Davis

v.

Connecticut Fire Insurance Co.,

158 Cal. 766, [112 Pac. 549]. As in those cases the defendant depended upon the “fallen building” clause in the policy, the entire defense being based upon the allegation and proof that a material portion of the building in which plaintiff’s store was located had fallen as a result of earthquake before the fire attacked plaintiff’s goods. There was no attempt made in this case as in

Davis

v.

Connecticut Fire Ins. Co.,

158 Cal. 766, [112 Pac. 549], to prove that the fire was in progress before any material portion of the building was shaken down. The uncontradicted testimony was that the fire did not reach the store owned by Moodey until long after the earthquake. This case is entirely analogous to the Fountain case. The evidence showed without any important contradiction that a material portion of the building had fallen before the fire occurred. That a substantial portion of the structure was destroyed by . the earthquake there can be no serious doubt. The testimony of defendant’s witnesses clearly established that fact and there was no contradiction of their statement by plaintiff’s witnesses, worthy of notice. Irving Brush, called by plaintiff, testified that as far as he could see the rear wall of the building in which Moodey’s store was located was standing a few minutes after the earthquake. He admitted that he did not look at the front of the building and that there might have been a small portion missing from the rear wall when he saw it. L. W. Burris testified that the top story of the Moodey building was “pretty badly shaken up,” but that the lower story seemed to be nearly intact. Virgil Hoffer, another witness for the plaintiff, said, “I think that the whole of the front of the building occupied by Mr. Moodey was out. That’s true, at the time I first went there.”