I am unable to agree with the majority of this court in the conclusion that there is no evidence in the record to support the finding of the trial court that the destruction of appellee's house was caused alone by the wind. The court below found that the house was "totally demolished, destroyed, and blown away, as a direct result of a tornado, windstorm, and cyclone of terrific violence," and specifically found that —
"the east wall of the house was blown out at the time the wind reached its highest velocity, and immediately after this wall was blown out the rest of the house went to pieces, * * * and that the loss and damage was not due directly or indirectly to high water or a tidal wave."
If there is any evidence in the record to support these findings, this court is not authorized to render a judgment contrary thereto, it matters not how clearly they may appear to us to be against the weight and preponderance of the evidence. The remarkable story told by the witness Jernigan, which is set out at length in the opinion of the majority, contains contradictory statements as to the cause of the destruction of appellee's house, and it was the peculiar province of the trial court to determine from his testimony and that of the other witnesses in the case which of these statements was true. He gives us a very vivid description of the force and fury of that portion of the storm which he observed during the intervals between the various naps which he took after going into the house and before he was washed out of his bed by the rising waters, and his statements of the circumstances in which the house went down are clear and uncontradictory. After stating that there were no high waves before the house went down, he says:
"I don't know how long it was I stayed at the door over the transom; just from a guess, I must have been there 10 or 15 minutes. I just hung there until the wind crashed the end of the house in with me; it went down with me and went to pieces. The south wall of the house parted from the corner, along the east wall of the house; parted from the corner towards my house and washed out."
He says further:
"The hardest wind came from the south. The other wind didn't amount to much. It was shortly after the change that was had our hardest wind, and that is the time Petrovich's house went down; the time the crash came was a few minutes after the wind changed. I think that was the hardest part of the wind when his house went down. I have heard since that the Weather Bureau said the highest velocity was 120 miles an hour, and I believe it blowed it, too, and a little bit better. * * * As to whether the foundation went with the house, will say, there is none of it left there; everything was cleared away, there was no foundation there. The foundation must have went down with the house. I hardly think that, if the house had gone off the foundation prior to the time it went down, that it would have fallen several feet, as the water was coming up around the house in a position that would hold the house from falling. I don't think there would have been much of a fall. * * * As to whether the house had floated any before it went down in the crash, will say I don't know whether it was on the blocks at this time or not. I don't know for sure whether it was on the blocks or not. Probably it were, but I don't know, and probably it was not. I felt the house rocking after I got to the transom. The house was not listed at all, sitting straight up until it went down; standing straight up as near as I could tell. The east wall, between my house and Steve's, was the one that went away when this wind changed and it got to this high velocity. Then immediately following that the rest of the house went down and I found myself in the water."
When asked on cross-examination to again describe how the east wall of the house went out, he answered:
"Well, just a crying and howling wind, and if there was any waves I could not see it, because I was protected by the house, and I did not think the waves got high yet; anyway they was not when I was in the water (after the house went down). Just a puff of wind, and a crash, and the wall was gone, and I could see my house."
Other testimony in the record abundantly established the velocity and destructive force of the wind at the time the house was destroyed. The preponderance of the testimony showing the height of the tide during the *Page 938 storm, the elevation of the ground on which the house stood, and the elevation of the house above the ground, fully justified the trial court in rejecting the testimony of the witness Jernigan in regard to the height of the water in and around the house at the time it went down, and shows that the water could not have been within 2 feet of the floor of the house.
There is no evidence that the foundation of the house was undermined. If such had been the fact, it could have been easily established by the condition immediately after the storm of the ground on which the house stood, and if the water was a proximate cause of the destruction of the house, it must have been high enough to have washed it off its foundation. If the trial judge rejected Jernigan's statement as to the height of the water in and around the house, as he had a perfect right to do under the testimony of the other witnesses, how can it be said that reasonable minds cannot differ in the conclusion that the water was a proximate cause of the destruction of the house? It seems to me that both of the opinions of the majority of the court filed in this case ignore the rule, which is fundamental in our judicial system, that where there is evidence to support a verdict or a fact finding of a trial court, an appellate court has no authority to render a contrary judgment.
It is the duty of an appellate court to "cull" from the record all of the evidence tending to support the finding of the trial court, and if the record, when so "culled," presents evidence sufficient even to raise an issue, no judgment can legally be rendered in the appellate court contrary to the fact findings of the lower court. I think the evidence in this record is more than sufficient to raise an issue as to the cause of the destruction of appellee's house, and therefore I cannot assent to the conclusion of the majority that judgment should be here rendered for appellant.