Travelers Indemnity Co. v. Parkersburg Iron & S. Co.
| Decision Date | 03 April 1934 |
| Docket Number | No. 3571.,3571. |
| Citation | 70 F.2d 63 |
| Parties | TRAVELERS' INDEMNITY CO. v. PARKERSBURG IRON & STEEL CO. |
| Court | U.S. Court of Appeals — Fourth Circuit |
James S. McCluer, of Parkersburg, W. Va., and James M. Guiher, of Clarksburg, W. Va. (Philip P. Steptoe, of Clarksburg, W. Va., Mason G. Ambler, of Parkersburg, W. Va., Steptoe & Johnson, of Clarksburg, W. Va., and Ambler, McCluer & Ambler, of Parkersburg, W. Va., on the brief), for appellant.
H. W. Russell, of Parkersburg, W. Va., and Frank W. Nesbitt, of Wheeling, W. Va. (John F. Budke, of Franklin, Pa., Russell, Hiteshaw, Adams & Hill, of Parkersburg, W. Va., and Nesbitt & Nesbitt, of Wheeling, W. Va., on the brief), for appellee.
Before PARKER and SOPER, Circuit Judges, and CHESNUT, District Judge.
This is a suit on a policy of boiler insurance. There was a verdict and judgment for plaintiff, and the defendant insurance company has appealed, contending that verdict should have been directed in its behalf. The sole question presented is whether the evidence was sufficient to support the verdict. It is admitted that an engine connected with a steam line covered by the policy was wrecked, resulting in the damages which the jury awarded; and plaintiff's contention is that its wrecking was due to the pressure of steam in the cast-iron steam separator. Plaintiff's theory of the occurrence is that the metal of the separator had become weakened or "fatigued" by strain and vibration extending over a long period of time; that it gave way at the time of the occurrence, thus releasing the pressure on the water in the boilers; that this resulted in water being carried into the cylinder of the engine; and that this water in the cylinder wrecked the engine. Defendant's contention is that a piece of the follower plate on the piston head of the engine was broken off and fell into the cylinder, and that this caused the wrecking of the engine and the breaking of the separator. If plaintiff's contention is correct, the loss was covered by the policy; as its coverage extended not only to the boilers, but also to the steam pipes connected therewith, including the steam separator, and defendant would be liable for the damage resulting from any breaking of the separator due to steam pressure. If defendant's contention is correct, the loss is not covered; as, in that event, the loss resulted from the breaking of a part of the engine and not from the pressure of steam in any of the appliances which the policy covered.
The question involved is a pure question of fact, and much testimony was taken with regard thereto, including the highly conflicting testimony of a number of mechanical experts. We have read this testimony carefully in the light of the argument and briefs of counsel, and we cannot say that it does not substantially support the verdict. On the contrary, we agree with the judge below that the theory of plaintiff is supported by the testimony of eyewitnesses and physical facts established in the case, as well as by the testimony of plaintiff's experts, and that the theory of the experts of defendant is so inconsistent with certain of the physical facts established that the jury would hardly have been justified in accepting it. The case, therefore, is not one for the application of the rule relied upon by defendant (see Pennsylvania R. Co. v. Chamberlain, 288 U. S. 333, 53 S. Ct. 391, 77 L. Ed. 819) to the effect that, where proven facts give equal support to two inconsistent inferences, judgment must go against the party upon whom rests the burden of proof.
A number of witnesses testified that prior to the accident the engine was running smoothly and that the first sound indicating anything out of the ordinary was a noise of escaping steam like the blowing off of a giant pop valve. No crash was heard preceding this, as would inevitably have been the case had the wrecking of the engine resulted from the crushing of the broken pieces of the follower plate against the cylinder head. There was also testimony that, after the steam had begun...
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