Summary
In Metropolitan Ice Cream Co. v. Union Mut. Fire Ins. Co., Mo. App., 210 S.W.2d 700, while that case is cited, it was not followed in so far as it may be said to hold that as a matter of law a wind with a velocity of 28 m.p.h. cannot be said to be a windstorm.
Summary of this case from North British Mercantile Ins. Co. v. SciandraOpinion
No. 41047.
January 7, 1949.
1. INSURANCE: Evidence: Collapse of Cooling Tower: Structural Defects as Sole Cause. In defending a windstorm policy, evidence that structural defects had contributed to the collapse of a cooling tower would not be competent, as such defects would have to be the sole cause in order to afford a defense.
2. INSURANCE: Evidence: Witnesses: Collapse of Cooling Tower: Expert Testimony Improperly Excluded. The testimony of an expert witness that structural defects were the sole cause of the collapse of plaintiff's cooling tower was improperly excluded on the ground that it invaded the province of the jury. A jury of inexperienced laymen could not have formed an intelligent opinion such as would have made the opinion of an expert structural engineer valueless and of no assistance to them.
3. TRIAL: Evidence: Cross Examination Not Unduly Restricted. The trial court did not abuse its discretion in limiting cross-examination on a collateral incident.
Appeal from Circuit Court of City of St. Louis. — Hon. William L. Mason, Judge.
REVERSED AND REMANDED.
Franklin E. Reagan, Adolph K. Schwartz and Sievers Sievers for appellants.
(1) The evidence was insufficient to show respondents sustained any direct loss and damage by reason of a windstorm. Respondents cannot build inference upon inference in order to make a case. Cardinale v. Kemp, 274 S.W. 437. (2) The courts are without authority to rewrite insurance contracts. Prange v. International Life Ins. Co. of St. Louis, 46 S.W.2d 523; Packard Mfg. Co. v. Indiana Lumbermen's Mut. Ins. Co., 203 S.W.2d 415. (3) The term "windstorm" means more than an ordinary wind. Jordan v. Iowa Mut. Tornado Ins. Co., 130 N.W. 177, 151 Iowa 73; Scottish Union Natl. Ins. Co. v. Linkenhelt Co., 121 N.E. 373, 70 Ind. App. 324; Schaefer v. Northern Assur. Co., 177 S.W.2d 688. (4) The circumstances were insufficient to show the existence of a windstorm. Warren v. Farmers' Mutual Fire Ins. Co., 130 Mo. App. 226; Metz v. The Travelers Fire Ins. Co., 49 A.2d 711, 6 F. C. 193. (5) A windstorm was not the proximate cause of the fall of the tower and the damages resulting therefrom. Lunn v. Indiana Lumbermen's Mut. Ins. Co., 201 S.W.2d 978. (6) The court erred in admitting in evidence the alleged proofs of loss. Johnstone v. Home Ins. Co. of New York, 34 S.W.2d 1029. (7) The court erred in excluding competent evidence of expert witnesses as to the cause of the collapse of the brick west wall. Whether or not the wall collapsed from overloading was a matter for expert opinion. Metz v. Travelers Fire Ins. Co., 49 A.2d 711, 6 F. C. 193; Francis v. Terminal R. Assn. of St. Louis, 193 S.W.2d 909; Combs v. Rountree Const. Co., 205 Mo. 367, 104 S.W. 77; City of Aurora v. Firemen's Fund Ins. Co., 180 Mo. App. 263, 165 S.W. 357; Phares v. Century Elec. Co., 336 Mo. 961, 82 S.W.2d 91; Cropper v. Titanium Pigment Co., 47 F.2d 1038, 78 A.L.R. 737; Quaker Oats Co. v. Grice, 195 F. 441; Busch Latta Paint Co. v. Woermann Constr. Co., 276 S.W. 614; Colwell v. St. Louis-S.F. Ry. Co., 73 S.W.2d 222; Jones v. Chicago, B. Q.R. Co., 125 S.W. 5; Mann v. Grim-Smith Hospital and Clinic, 147 S.W.2d 606; Hardwicke v. Kansas City Gas Co., 195 S.W.2d 504. (8) The trial court committed error in denying appellants the right to cross-examine respondents' General Manager, Atkinson, as to the Lilie-Hoffman contract. Dempsey v. Horton, 84 S.W.2d 621; Arnold v. Alton R. Co., 154 S.W.2d 58.
Victor Packman and Melvin L. Newmark for respondents.
(1) The demurrers to the evidence admitted as true every fact and circumstance which plaintiffs' evidence tends to prove, and plaintiffs are entitled to the benefit of every inference of fact which may reasonably be drawn therefrom; further, the evidence must be considered in the light most favorable to plaintiffs while the defendants' evidence must be disregarded except insofar as it may tend to aid plaintiffs' case. Cento v. Security Bldg. Co., 99 S.W.2d 1; Meier v. Eureka-Security Fire Marine Ins. Co., 168 S.W.2d 127. (2) The issue as to whether or not there was a windstorm which caused the damage to the properties of the plaintiffs was for the jury. Schaeffer v. Northern Assur. Co., 179 S.W.2d 923; Schaeffer v. Northern Assur. Co., 177 S.W.2d 688. (3) Circumstantial evidence alone is sufficient in arriving at the conclusion that the damages plaintiffs suffered were due to a windstorm. Schaeffer cases, supra, 46 C.J.S., pp. 531, 532; Garner v. New Jersey Fidelity Plate Glass Ins. Co., 200 S.W. 448; Schanbacher v. Lucido Bros. Groc. Co., 93 S.W.2d 1076. (4) An inference may be and often is retroactive and a trial may from present conditions infer a previous fact. Gray v. Kurn, 137 S.W.2d 558, 345 Mo. 1027. (5) The glib objection to "inferences upon inferences" does not refer to a literal rule of law. The doctrine in Cardinale v. Kemp, 274 S.W. 448, cited by appellants has been explained, whittled, ignored and criticized by high authority. Wills v. Berberich's Delivery Co., 134 S.W.2d 125, 345 Mo. 616; Van Brock v. First Natl. Bank in St. Louis, 161 S.W.2d 258, 349 Mo. 425. (6) The court did not err in admitting in evidence the separate proofs of loss pertaining to respective policies. 46 C.J.S., pp. 493, 494; Kahn v. Assurance Corp., 187 Mo. App. 216. (7) The court did not err in excluding incompetent evidence which the defendants endeavored to offer as to the opinion or conclusion of the witnesses re the cause of the damage (the ultimate fact issue). Even if such evidence were based upon competent hypotheses, the court would not be guilty of an abuse of discretion in excluding such evidence as it would invade the province of the jury and there was no need for such evidence, as the jurors were competent in a case of this kind to draw their own conclusions from the facts before them. Baptiste v. Boatmen's Natl. Bank, 148 S.W.2d 743; Rodefer v. Grange, etc., 91 S.W.2d 112; Fair Mercantile Co. v. St. Paul Fire Marine Ins. Co., 175 S.W.2d 930, 237 Mo. App. 511; Miller v. Great American Ins. Co., 61 S.W. 205; Cole v. Empire District Elec. Co., 55 S.W. 434, 331 Mo. 824. (8) The court did not unduly restrict the right of cross-examination of respondents' witness, Atkinson. The scope of cross-examination is within the court's discretion as to collateral issues. Arnold v. Alton R. Co., 154 S.W.2d 58. "The supreme court, or court of appeals, shall not reverse the judgment of any court, unless it is believed that error was committed by such court against the appellant, and materially affecting the merits of the action." Sec. 847.123, Code of Civil Procedure. (9) Conceding, arguendo, that the evidence with reference to proofs of loss was not admissible for all purposes, yet where its exclusion would not have had a tendency to produce a different result, the judgment should not be reversed. Lindauer v. Mayberg, 27 Mo. App. 181; Abel v. Strimple, 31 Mo. App. 86; Tuggle v. Railroad, 62 Mo. 425; Singer Mfg. Co. v. Gibbons, 35 Mo. App. 602; Travis v. Continental Ins. Co., 47 Mo. App. 482; Myres v. Diamond Joe Line, 58 Mo. App. 199; Schuler v. Metropolitan Life Ins. Co., 191 Mo. App. 52; Floyd v. Prudential Ins. Co., 72 Mo. App. 455; Hoelscher v. Pate, 79 S.W.2d 776. (10) It is not the practice of appellate courts to reverse judgments because of the presence of incompetent evidence which is merely cumulative, particularly where there is no conflicting evidence, as in this case. The evidence was sufficient with reference to damage sustained. See opinion in this case, 210 S.W.2d 700; State v. State Board of Health, 52 S.W.2d 743; Avery Co. v. Kemp, 196 S.W. 1069; Stasiak v. Kalucki, 255 S.W. 978; Shouse v. Dubinsky, 38 S.W.2d 530; Goodwin v. Union Ins. Co., 127 N.W. 790. (11) The question of amount of damages was not an issue in the case, as the defense denied that there was a windstorm and had returned proof of loss. Hence the issue of amount of damages was waived and any proof of damages was surplusage. Bini v. Smith, 55 N.Y.S. 842 . (12) Even though the proofs of loss were not proof of the actual damages sustained by the plaintiffs, the defendants are in no position to complain, as they should have asked a cautionary instruction from the court limiting the uses to which they should be put by the jury in making up their verdict. Garrity v. President, etc., of St. Vincent's College, 76 Mo. 332; Stanley Milling Co. v. Transit Co., 122 Mo. 258, 26 S.W. 704; Baumann v. Anderson, 186 S.W. 1012.
This cause comes to this court on our order transferring it from the St. Louis Court of Appeals under Art. V, Sec. 10, Const. Mo. 1945 and our Rule 2.06. The decision of that court is reported in 210 S.W.2d 700.
The plaintiffs-respondents Ice Cream Company and Simkowitz, respectively tenant and owner of a building in St. Louis, sued the four defendant-appellant insurance companies under their several windstorm insurance policies, for damages to said building and machinery and equipment therein, allegedly resulting from a windstorm which caused a cooling tower, weighing about thirteen tons and supported by the roof and walls, to collapse with the consequences aforesaid about 7:30 a.m. on the morning of November 30, 1944. Hereafter we refer to the parties as respondents and appellants. The appellants contended the evidence showed there had been no windstorm and that the collapse of the cooling tower was caused solely by overloading, faulty construction and deterioration of the building walls. They respectively moved for directed verdicts, which motions were overruled, and respondents recovered separate verdicts and judgments against the respective appellants aggregating $5747.67, which placed the appellate jurisdiction in the Court of Appeals in the first instance, Art. V, Sec. 3, Const. Mo., 1945.
Appellants make three points in their brief in this court, which they say are "in addition to" the eleven points raised in their brief in the Court of Appeals. They are, that the trial court erred: (1) "in excluding competent evidence of expert witnesses as to the cause of the collapse of the brick west wall;" (2) "in denying appellants the right to cross-examine respondent's general manager, Atkinson, as to the Lilie-Hoffman contract;" (3) and because "five given instructions for respondents were erroneous." Actually all three of these points were presented in the Court of Appeals brief where they were III, IV, V and VII, but with different authorities cited.
We consider first appellants' contention that the trial court erred in excluding competent testimony from their two expert witnesses that the cause of the collapse of the brick west wall was not the wind but overloading, faulty construction and deterioration. There was evidence for respondents that a violent wind was blowing about 2 a.m. on the night of November 29-30, and a high wind on until morning. The highest velocity recorded during the night at the Weather Bureau, some distance away, was 23 miles per hour. It was 17 miles per hour when the cooling tower collapsed at 7:30 that morning. The temperature was 16°. When the cooling tower fell the ruins showed it "had taken out part of the west wall (of the building) and caused the east wall to collapse on the ground out there, and there was sheet ice and water and general debris," but little snow or ice on the ground at other places. Most of this evidence came from respondents' witness Atkinson, manager of the Ice Cream Company.
Appellants presented two expert witnesses, A1 P. Daly, a building contractor of 47 years experience in St. Louis, and Carl A. Koerner, a structural engineer. These witnesses testified that the walls of the building were overloaded, and that the faulty construction and condition thereof rendered them inadequate to support the cooling tower and to enable it to withstand wind pressure. But appellants' windstorm insurance policies were not conditioned against any such structural deficiencies. And so, in order for them to present a prima facie defense relieving them from liability it was necessary for them to make a showing from which the jury could have found that the collapse of the cooling tower was not due to windstorm as a contributing cause, but solely to the structural deficiencies they had proven.
[466] As we read his testimony, witness Daly said he did not know whether the collapse of the structure resulted solely from the one cause or the other. And for that reason the trial court ruled correctly in excluding it. But as to witness Koerner, the situation is different. When he was asked as an expert by appellants' counsel whether in his opinion the structural defects he had described were the cause of the collapse "without the additional interceding [evidently meaning intervening or contributing] cause of the windstorm," the trial court sustained the objection of respondents' counsel.
Counsel's objection was long, and included many things: such as that the witness' examination was made too late — eight days after the collapse; that conditions were not shown to be the same as to the nature and direction of the wind; how the I beams were set in the walls; height of the walls: nature of the stresses, etc.: and finally, that it invaded the province of the jury. But the witness had been on the ground, had seen the blueprints, and described conditions rather fully in his previous examination. It is evident to us that the court sustained the objection only on the ground last stated — that it invaded the province of the jury — just as the court had shortly theretofore expressly ruled in part with respect to the witness Daly. This same view was taken by the Court of Appeals. Its opinion [210 S.W.2d l.c. 704(9)] so construes the trial court's ruling.
Then the Court of Appeals opinion proceeds to hold that the evidentiary facts in the instant case were not "so far removed from the experience of the average person that a jury would be incompetent to pass upon them without the aid of an expert," and concludes the trial court did not err in sustaining the respondents' objection, and refusing to permit appellants' expert witness Koerner to express an opinion whether the collapse of the cooling tower was due solely to overloading and structural defects, and not to the windstorm. In this connection it should be remembered the records of the Weather Bureau showed the highest wind velocity of 27 miles per hour had occurred at 2 a.m., about 5½ hours before the collapse at 7:30 a.m. when the velocity had decreased to 17 miles per hour, and that the tower was filled with water and ice had formed thereon or therein.
In so holding the opinion relied chiefly on Fair Mercantile Co. v. St. Paul F. M. Ins. Co., 237 Mo. 511, 519-23(4), 175 S.W.2d 930, 934-6(4), where it was held expert testimony was admissible on the issue whether a building was destroyed by fire or an explosion, and many decisions were reviewed. Another case cited is Cole v. Empire District Elec. Co., 331 Mo. 824, 833(4), 55 S.W.2d 434, 437 (3, 4) where it was held expert testimony based on a hypothetical question should not have been admitted on the issue whether a fire was caused by defective electric wiring, the evidence showing the fire started at the location of that wiring, within 15 to 30 minutes after the current had been turned on.
In our opinion these decisions do not support the conclusion reached by the Court of Appeals. As the Cole case, supra, holds a jury of laymen must be able to form an intelligent opinion, notwithstanding their inexperience, without the aid of expert testimony before such opinion testimony becomes inadmissible. We are unable to agree that in the instant case a jury of inexperienced laymen could have formed an intelligent opinion such as would have made the opinion of an expert structural engineer valueless and of no assistance to them.
As quoted in the Fair case cited by the Court of Appeals opinion here, with respect to complex and technical questions, it is stated in 20 Am. Jur., p. 647, § 775: "On such issues, testimony of one possessing special knowledge and skill is required in order to arrive at an intelligent conclusion. In such cases, witnesses possessing requiite training, skill, or knowledge, denominated `experts,' may testify, not only to the facts, but to their opinions respecting the facts, so far as necessary to enlighten the jury and to enable it to come to a right verdict. The theory is that experts have knowledge, training, and experience enabling them to form a better opinion on a given state of facts than that [467] formed by those not so well equipped, which is the case of the ordinary juror, and their opinions are admitted in evidence for the purpose of aiding the jury to understand questions which inexperienced persons are not likely to decide correctly without such assistance. Issues of this kind are said to create a necessity for the admission in evidence of the opinions or conclusions of witnesses who are shown to be specially skilled or experienced in the particular field in question." See also: 32 C.J.S., p. 75, § 446; p. 215, § 518; p. 217, § 520; Busch Latta Paint Co. v. Woermann Constr. Co, 310 Mo. 419, 276 S.W. 614, 620(11); Mann v. Grim-Smith Hosptial Clinic, 347 Mo. 348, 353(2), 147 S.W.2d 606, 608(3) and Hardwick v. K.C. Gas Co., 355 Mo. 100, 106(2), 195 S.W.2d 504, 507(3).
We pass by briefly appellants' second assignment, complaining of the trial court's restriction of their right to cross-examine the respondent Ice Cream Company's manager, Atkinson, concerning the "Lilie-Hoffman" contract. That contract was one made by the Lilie-Hoffman Company in 1937 for the erection of the collapsed cooling tower involved in this case. Appellants' counsel asserted that former contract contained a guarantee that the tower would withstand a wind velocity of 90 miles per hour; and he sought to interrogate Atkinson about why he did not invoke that guarantee in his negotiations for a new tower in 1945, if he really believed the old tower had been destroyed by the wind. But Atkinson insisted the old contract was made six years before he began to work for the Ice Cream Company and that he was not familiar with it. The incident was collateral, and we think the trial court did not abuse its discretion in refusing to permit appellants' counsel to protract the cross-examination.
We also pass by, without discussion, appellants' third assignment complaining of the giving of respondents' instructions to the jury numbered 1 to 5. This assignment is dealt with in the Court of Appeals opinion [210 S.W.2d l.c. 705 (11-16)]. We shall not protract this opinion by discussion of the instructions, inasmuch as we have upheld appellants' contention on their first point and the cause must be reversed and remanded and the error, if any, probably will not recur on another trial. In fact, the Court of Appeals opinion also reversed and remanded the cause because of error in the admission in evidence of respondents' proofs of loss as evidence of the amount of their damages [210 S.W.2d l.c. 703(7)].
For the reasons stated above the judgment is reversed and the cause remanded to the circuit court. All concur.