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Show THURSDAY, AUGUST 31. 1972 THE DAILY RECORD PAGE THREE In The Supreme Court Of The State Of Utah other source get there, and proceed to reason further: that the only the within to be or house, was of water known to be entering the house, the plumbing; as known through and within the system of pipes and fixtures that it is within the realm of common experience that parts of the plumbing and in the house, which includes the inlets, outlets, the various fixtures to be or properly operated or drains, at times fail to function properly, to drain, and attended, which may cause leakage, overflow, or the failure thus result in water on the floor, and conclude therefrom, as the trial . court . . did, that the most logical source was from the "accidental discharge from a plumbing fixture. oral 2. This formally prepared and written finding takes preference over any to counsel suggest with seeming observations of the trial judge in the colloquy came from a source water the show that to defendant on the was burden that the 121 Utah excluded by paragraph 3(c) of the policy, see McCollum v. Clothier, 311, 241 P. 2d 468. 3. See 1 Wigmore on Evidence (3d Ed.), Sec. 25; Harrison v. Harrison, .d it v Omcr Morris, Plaintiff and Respondent, v. No. 12760 FILED Farmers Home Mutual August 14, 1972 Insurance Company, Defendant and Appellant. L. M. Cummings, Clerk CROCKETT. Justice: Plaintiff Morris recovered judgment against Farmers Home Mutual Insurance Company for water damage in the basement of his home which the trial court found to be covered under the terms of defendant's insurance policy. Defendant appeals, making the contentions: (1) that there is no basis in the evidence to support the trial court's finding that the damage was covered by the policy, but on the contrary, (2) the only reasonable finding from the evidence would be that it was from a cause affirmatively excluded by the policy. 'fcormickon Evidence, Sec. 319; Alvarado v. Tucker, 2 Utah 2d 16, 268 P 2d 986. 5. A case involving analogous reasoning is Jennings v. Farmers Mutual Ins. a ?7Q i4Q N.W2d 298. see authorities therein cited. , The provision upon which the trial court found the defendant respon- sible is: 16. Accidental discharge, leakage or overflow of water or steam from within a plumbing, heating or air conditioning .... Such loss system or from within a domestic appliance shall include the cost of tearing out and replacing any part of the building covered necessary to effect repairs . ... provision upon which the defendant seeks to avoid liability is: THIS POLICY DOES NOT INSURE AGAINST LOSS: 3. caused by, resulting from, contributed to or aggravated by any of the following: c. water below the surface of the ground including that which exerts pressure on or flows, seeps or leaks through sidewalks, driveways, foundations, walls, basement or other floors or through doors, windows or any other opening in such sidewalks, driveways, foundations, walls or floors; . . . There is no dispute about the fact that on the afternoon of September 2, 1970, water from some source flooded the plaintiff's basement, nor that it did damage to carpeting and other items to the extent of $400, as awarded I The matter of critical concern is where the water came from. by the court. When plaintiff returned to his home at approximately 4:30 that afternoon he first discovered this flooding, but did not determine its source. Thereafter inspections of the premises were made by experts retained separately by plaintiff and defendant. They did not discover any broken pipes, taps or other overt sources of leakage, nor did they find any likely source from below the surface or through sidewalks, foundations, etc. , listed in the exclusion clause 3(c) hereinabove quoted. It was found that there appeared to be a "cold seam" (the cement had been set at different times) between the foundation wall and the floor, from which it was possible that there could be seepage of ground water into the basement. On the basis of the evidence the court made this finding: 1. Actual loss was $800, but due to circumstances not material here, one half of the loss was paid by another insurer. The Court finds from a preponderance of the evidence that the water did not enter the basement from an outside broken pipe, nor from seepage through the walls or basement floor, nor from outside flooding, nor from a high water table, nor from any other specified source wlich is expressly excluded in the policy coverage. The Court finds from a preponderance of the evidence that the water entered the basement due to accidental discharge of water from a plumbing fixture located within the basement. Emphasis added. Defendant's attack on those findings is that because no one was there to see where the flooding water came from, nor had made any discovery as to a particular source, the evidence was insufficient to support the finding that it came from "a plumbing fixture within the basement. " The nature of the world about us and the goings on therein are such that we witness only a small percentage of it by direct observation. A large portion of our awareness and knowledge is necessarily derived from deductions based upon our observations of existing facts and circumstances. It is important to apply this principle to the prerogative of the court as the fact trier. He is entitled to make his findings of fact, not only on evidence concerning direct observaintelligence tions, but also to draw whatever inferences a person of ordinary 3 therefrom. and draw could and experience reasonably fairly Proceeding upon the premises just stated, we note our accord with certain other principles applicable to our consideration of defendant's attack upon the findings: that the plaintiff has the burden of proving that his loss comes within the coverage stated in the policy; that this burden is not met if the evidence is so inadequate or uncertain as to leave reasonable minds in a state of doubt or conjecture, but can only be satisfied by evidence which meets the universally recognised standard of proof required to establish facts in a civil case, that is, by a preponderance of the evidence. This requires that the evidence be such that reasonable minds acting fairly thereon could believe that the existence of the fact is more probable or more likely than its nonexistence, so that a person of ordinary prudence could believe the fact with sufficient assurance to act upon it in relation to matters of serious concern in his own affairs. We apply what has just been said to the evidence. It appears that an fact trier might well reason: that inasmuch as impartial and fair-mind- ed there had been no previous flooding from underground, foundations, walls, etc. , as excluded under paragraph 3(c) of the policy, he did not believe that he water came from any such source. He could then ask himself, how else A It is my impression that at times any ol us may be too much in- to dined judge what is reasonable on the basis of what seems reasonable solely from our own point of view, and if it does not coincide with our own conclusion, to deem it unreasonable, rather than to allow a reasonable latitude as to what other reasonable minds may conclude. In order to honor the prerogative of the trial court as the finder of the facts, it is essential that this court should be as objective as possible, and keep in mind that the test to be applied is not necessarily whether the members of the court would reach the same conclusion, but whether the findings as made would be within the ambit of what any reasonable minds might find, even if they should differ from our own views. In considering the issue presented by the defendant in the light of what we have said above, and upon the basis of the traditional rules which allow the trial court the prerogative not only of finding the facts shown by the direct evidence, but also of drawing any reasonable deductions and inferences that could fairly and reasonably be derived therefrom, and which require this court to review the total record in the light favorable to his findings, we are not persuaded that they are so without a reasonable basis in the evidence that they should be overturned. Costs to plaintiff (respondent). Affirmed. WE CONCUR: E. R. Callister, Jr. , Chief Justice R. L. Tuckett, Justice ELLETT, Justice: (Dissenting) I dissent. In his opening statement to the court counsel for Mr. Morris summed up the matter correctly when he said: . . . And they plaintiff and an employee of the defendant went through the basement and speculating as to where this water came from. I say speculating advisingly sic, because to this date there is no definite proof as to how this water got in the basement. It is one of those odd things that just could not definitely be established ... here, it is As I have given Your Honor the evidence that is speculation from the word go in all directions whether it came from inside or outside. . The the house. trial judge likewise . . could not determine how the water got into He stated: But what I think I am saying here, Mr. Clegg, is I think that under the facts and circumstances here that the plaintiff has probably met his burden of proof of showing that this water damage occurred after your policy came into existence. And that since water damage to the house under certain circumstances would be covered by the policy, it then becomes the burden of the insurance company to show that the damage resulted from a source that excluded liability of the insurance company for the damage, and I don't think you have done that. I don't know that you could. . . . It thus is clear that no one, including the judge, knew how the damThe judge then misapplied the law when he assumed that defendant was obligated to show that the cause of the damage was something other than those covered by the policy. age occurred. The law is to the contrary. The burden was upon the plaintm not to show damage, but also to show that it was caused by some agency only which the policy covered. The law is stated in 21 Insurance Law and Practice (Appleman) in section 12141 at page 74 to be: In an action on an accident policy, the burden is on the beneficiary to show by evidence that the insurer is liable upon its policy. Likewise, the insured has the burden of showing that his injury was covered by the terms of the policy. But the facts need be proven only by a preponderance of the evidence. To the same effect Couch on Insurance 2d states the law to be: The insured has the burden of proving that the loss sustained was such as comes within the coverage of the policy. Sec. 79:344 In signing findings undoubtedly drawn by counsel for the plaintiff the court said: The court finds from a preponderance of the evi- - |