
    Henry L. Beakes, Resp’t, v. The Phœnix Insurance Co. of Hartford, Conn., App’lt.
    
      (Supreme Court, General Term,, Second Department,
    
    
      Filed July 28, 1893.)
    
    Insurance (fire)—Lightning.
    In an action on a policy of insurance which provided that it should cover all direct loss or damage caused by lightning, and in no case to include loss or damage by cyclone, tornado or wind storm, where the building had been destroyed during a heavy thunder storm, the court charged that if lightning was the primary cause of the destruction the jury might give a verdict for the whole damage sustained; but if lightning was not the primary cause, they should give only such verdict as would compensate for the damage directly caused by lightning. Held, that as the jury gave a verdict for less than half the damages sustained, the error in the charge, if any, was not such as called for reversal.
    Appeal from judgment in favor of plaintiff, entered upon verdict for $1,100, and from order denying motion for a new trial.
    The action was brought to recover on a policy of fire insurance, issued by the defendant to the plaintiff through its local agents in Middletown, N. Y, in June, 1889, covering the plaintiff’s two barns and contents, located on his farm about a mile from Middle-town, the amount of insurance on the barns and contents, which was damaged or destroyed, was two thousand seven hundred and forty-seven dollars and fifty cents ($2,747.50); the loss was total.
    The policy contained the following condition :
    “It is understood and agreed that 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, etc.”
    The plaintiff claimed that on the 10th day of August, 1890, his barns and contents, which were covered by said policy, were totally destroyed by lightning during a severe thunder storm, which visited his locality. The evidence which tended to establish his theory was almost wholly circumstantial, but of such a character that it clearly demonstrated the fact that if lightning was not the primary or proximate cause of the whole loss or damage, it at least contributed in part to cause it.
    
      William Vanamee, for app’lt; William F. O'Neill, for resp’t.
   Pratt, J.

The only questions seriously discussed are whetner the circuit judge fell into error in his instructions as to the rule of damages, and if error exists whether it requires a new trial. The jury were told that if lightning was the primary cause of the destruction they might give a verdict for the whole damage sustained, $2,747. But, if lightning was not the primary cause of the destruction, they should give only such verdict as would compensate for the damage directly caused by lightning.

Had the jury given a verdict for $2,747, we should have been compelled to carefully construe the language of the policy. It is, however, evident that the jury made the discrimination suggested by the court and allowed a recovery for such portion of the loss as they believed to be caused by the direct action of the lightning, ascribing $1,647 of the loss to other causes, the questiou whether they could have properly given a verdict for the larger sum becomes unimportant.

No other subject requires discussion.

Judgment and order affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.  