Albert Lea Ice & Fuel Co. v. U.S. Fire Ins. Co.

• Decision Date: 24 April 1953
• Docket Number: No. 35963,35963
• Citation: 239 Minn. 198,58 N.W.2d 614
• Court: Minnesota Supreme Court
• Parties: ALBERT LEA ICE & FUEL CO. v. UNITED STATES FIRE INS. CO. et al.

Page 614

58 N.W.2d 614

239 Minn. 198

ALBERT LEA ICE & FUEL CO. v. UNITED STATES FIRE INS. CO. et al.

No. 35963.

Supreme Court of Minnesota.

April 24, 1953.

Upon Appeal from Clerk's Taxation of

Costs May 22, 1953.

SYLLABUS BY THE COURT.

1. Under policy insuring against peril of windstorm, a 'windstorm,' in the absence of any more specific definition, must be taken to be a wind of sufficient violence to be capable of damaging the insured property.

2. Whether a witness qualifies as an expert ordinarily is a question to be decided by the trial court, and its ruling thereon will not be reversed on appeal unless it is based on some erroneous view of the law or is clearly not justified by the evidence.

3. Opinions of an expert are not inadmissible merely because they bear directly on the issue to be determined by the jury.

4. The opinion of an expert witness which is not based upon an adequate factual foundation has no evidentiary value and should be rejected as speculative and conjectural. Where, as here, plaintiff's entire cause of action hinges upon such opinion testimony, jury's verdict in favor of plaintiff cannot stand.

Nichols & Tuveson, Albert Lea, Clausen, Hirsh & Miller, Chicago, Ill., for appellants.

Elmer R. Peterson, Albert Lea, for respondent.

CHRISTIANSON, Justice.

Action is brought by plaintiff, Albert Lea Ice and Fuel Company, against defendant insurers to recover for damages to plaintiff's icehouse allegedly caused by windstorm. The policies in question insured the icehouse against fire loss and in addition 'direct loss by windstorm.' The jury returned a verdict for plaintiff. Defendants appeal from an order denying their alternative motion for judgment notwithstanding the verdict or for a new trial.

The icehouse in question is of wood construction and is located on the north side of Fountain Lake in Albert Lea, Minnesota. The damage was confined to an addition to the icehouse which was built about 1935. It is 120 feet long (north and south), 36 feet wide, and 20 feet high. The east wall is the west wall of the original icehouse which was built in 1926. The entrance is located at the south end facing the lake and is 4 feet wide and 20 feet high. The addition is divided into two equal rooms by a partition running east and west which also has an entrance 4 feet wide and 20 feet high. The roof structure is supported by trusses running east and west which are 12 feet apart. The east ends of these trusses rest on a plate placed on top of the west wall of the original icehouse.

The damage was discovered by one of plaintiff's employees on August 28, 1951. The west wall bulged outward approximately two feet at the north end. Several of the northerly trusses had fallen down on the east side causing a partial collapse of the roof. Commencing August 1, 1951, the addition had been rented out for the storage of stoves, and the south entrance and partition entrance were left fully opened for the purpose of airing out the building.

Plaintiff called Thomas Duffy, a building contractor who built the addition in about 1935 and examined its damaged condition shortly after August 28, 1951, to testify as an expert witness in its behalf. Mr. Duffy testified that in his opinion the cause of collapse was that wind had entered through the open entrance way and created undue pressure on the west wall of the addition forcing it outward and thereby pulling the trusses away from the supporting plate on the east side. Edward Olson, the only other witness called by plaintiff, testified that he was not certain just when the damage occurred but that it happened some time during the month of August. Plaintiff then introduced recordings of wind velocity at the Mid-West Airlines airport for the month of August. The recordings were taken each day during the hours of 8 a.m. to 3 or 4 p.m. The airport is located about two miles from the icehouse. The highest recorded wind velocity during that period was on August 5, 1951, when there was a southeast wind of 25 miles per hour with gusts up to 37 miles per hour. None of the witnesses could recall any strong winds during the period in question nor could they recall any broken limbs or branches of trees in the area of the icehouse or the city of Albert Lea.

1. Appellants contend that the evidence is insufficient to support the verdict against them. They cite a definition of 'windstorm' obtained from an early Iowa case, Jordan v. Iowa Mutual Tornado Ins. Co., 151 Iowa 73, 77, 130 N.W. 177, 178, wherein the Iowa court said:

'The word 'windstorm' is a simple one and is defined by Webster to be: 'A storm characterized by high wind with little or no precipitation.' As used in the policies in suit it should be construed as something more than an ordinary gust of wind, no matter how prolonged; and it takes its meaning measurably at least from the other words with which it is associated, to wit, tornado and cyclone. However, it need not have either the cyclonic or the twirling or whirling features which usually accompany tornadoes or cyclones, but it must be more than an ordinary current of air no matter how long continued. In other words it must assume the aspect of a storm, i.e., an outburst of tumultuous force.'

However, this frequently quoted definition of 'windstorm' does not provide the rigid standards which appellants suggest and when applied to particular fact situations has not led to uniform results. ¹

In our opinion the sounder and more reasonable view is that expressed in Gerhard v. Travelers Fire Ins. Co., 246 Wis. 625, 627, 18 N.W.2d 336, 337, where the Wisconsin court stated:

'* * * In the absence of definition or limitation in the policy, we think that a windstorm must be taken to be a wind of sufficient violence to be capable of damaging the insured property either by its own unaided action or by projecting some object against it. This is especially true where as here the more violent forms of windstorm (cyclone and tornado) are specifically named as something different from a mere windstorm. Any other view would work an imposition upon the insured. If defendant wishes to adopt some scale which establishes the velocity of wind necessary for a windstorm, or if it desires to limit its liability beyond the point that we have indicated, it should incorporate its proposed standard in the policy by clear terms and such ambiguities as are left in this policy should be resolved against it.'

In Fidelity-Phenix Fire Ins. Co. v. Board of Education, 201 Okl. 250, 252, 204 P.2d 982, 985, the Oklahoma court, after quoting from the Gerhard case, said:

'Considering the purpose of the coverage and the field of the risk, it would seem that any wind that is of such extraordinary force and violence as to thereby injuriously disturb the ordinary condition of the things insured is tumultuous in character, and is to be deemed a windstorm within the purview of the policy, in absence of a provision therein to the contrary.'

These cases were followed in Adams Apple Products Corp. v. National Union Fire Ins. Co., 170 Pa.Super. 269, 275, 85 A.2d 702, 705, where the court said:

'It seems to us that Any wind, strong and sustained enough to damage the insured property, is a 'windstorm' within the meaning of the term as used in the policies and within the contemplation of the parties.'

Therefore, the principal question before us in the instant case is whether the evidence is sufficient to support the jury's finding that the icehouse was damaged by wind.

2--3. Appellants assign as error the admission of Duffy's opinion testimony as to the cause of the collapse. They contend (1) that this was not a proper subject for expert testimony and that the jury without the aid of expert opinion was competent to determine the cause of the collapse; (2) that Duffy was not an expert; and (3) that he was permitted to give an opinion on the ultimate issue to be determined by the jury.

Appellants' first contention is without merit. The description and photographs of the damaged property standing alone do not permit an inference as to the cause of the collapse. Clearly this was an appropriate subject for expert testimony, the function of which is to assist the jury in reaching a correct conclusion from the facts in evidence. See, Swanson v. LaFontaine, 238 Minn. ---, 57 N.W.2d 262; Woyak v. Konieske, 237 Minn. ---, 54 N.W.2d 649. Appellants themselves called an experienced building contractor to testify as an expert witness in their behalf. His examination of the building disclosed that the plate on top of the west wall of the old icehouse was dry-rotted to such an extent that it had no more carrying strength. He stated that in his opinion the roof caved in because the plate upon which the trusses rested had no more carrying strength and just collapsed.

As to appellants' second contention, it is well established that whether a witness qualifies as an expert ordinarily is a...