Bauman v. Midland Union Ins. Co.

• Decision Date: 06 May 1952
• Citation: 261 Wis. 449,53 N.W.2d 529
• Parties: BAUMAN et al. v. MIDLAND UNION INS. CO. et al.
• Court: Wisconsin Supreme Court

Page 529

53 N.W.2d 529

261 Wis. 449

BAUMAN et al. v. MIDLAND UNION INS. CO. et al.

Supreme Court of Wisconsin.

May 6, 1952.

This is an action by the plaintiffs, who are husband and wife, to recover from the two defendant insurance companies damages for the destruction of plaintiffs' silo and the contents thereof on the ground that such damages were caused by an 'explosion' under the provisions of the extended coverage clauses of the defendants' fire insurance policies issued to plaintiffs.

The action was tried to a jury and the trial court submitted a special verdict containing three questions. The first question inquired whether an explosion occurred; the second whether, if there was an explosion, the same was the cause of plaintiffs' damages; and the third required the jury to fix the amount of damages, which third question was answered by the court as a result of a stipulation of the parties. The jury answered the first two questions 'Yes'. On motions after verdict the trial court under date of July 14, 1951, entered an order granting a new trial because of error in the instructions to the jury. Such order also denied defendants' other motions, one of which requested the court to change the jury's answer to the first qustion from 'Yes' to 'No', and to strike the answer to the second question, and, upon the verdict so amended, to enter judgment dismissing the plaintiffs' complaint.

The plaintiffs have appealed to this court from the order of the trial court granting a new trial, and the defendants have served and filed a Notice for Review requesting a review of the ruling of the trial court in denying defendants' motion made at the close of the evidence for a directed verdict in favor of the defendants. The facts will be stated in the opinion.

Lueck, Skupniewitz & Lueck, Beaver Dam, for appellants.

Wilkie, McCusker & Wilkie, Madison, Hartman Law Office, Juneau, for respondents.

CURRIE, Justice.

The plaintiffs' appeal presents the sole question of whether there was prejudicial error in the instructions of the trial court to the jury which justified the trial court in granting a new trial.

The particular instructions to the jury, which the trial court later determined were erroneous, read as follows:

'If there is any doubt as to the meaning of any term or word used in an insurance policy, the doubt will be resolved in favor of the one who is insured by the policy rather than in favor of the insurance company.'

and

'When a policy of insurance is capable of two meanings, that which is most favorable to the one who is insured by it is always to be adopted.'

These instructions were given by the trial court as a result of a request by plaintiffs' counsel.

The general rule is that the construction of words and clauses used in an insurance policy, where such construction does not depend upon extrinsic facts, presents a question of law for the court to decide, and is not for the jury. 29 Am.Jur., Insurance, 1151, sec. 1530.

In Thurston v. Burnett & Beaver Dam Farmers' Fire Ins. Co., 1898, 98 Wis. 476, 478-479, 74 N.W. 131, 132, 41 L.R.A. 316, this court held there was no jury question in construing the policy provisions there presented and stated:

'The case comes clearly within the rule, that where language is plain and unambiguous, the apparent import of the words must govern, and the rule that where there is no uncertainty as to the meaning of the words used in the contract and where such uncertainty exists, but there is no extrinsic evidence or circumstance bearing on the subject to be considered in determining the meaning attributed to them by the parties when the contract was made, the proper interpretation of the words and construction of the contract are solely for the court. Ganson v. Madigan, 15 Wis. 144; Murphey v. Weil, 92 Wis. 467, 66 N.W. 532. Therefore the trial court erred in leaving the construction of the contract to the jury.'

The following statement of the Arizona Supreme Court appearing in its decision in Equitable Life Assur. Soc. of United States v. Pettid, 1932, 40 Ariz. 239, 11 P.2d 833, 837, is particularly pertinent to the situation presented in the instant case:

'And the rule that the policy is construed most strongly against the insurer applies only to the language of the contract and not to the facts of the case.'

No extrinsic evidence was offered as to what the parties to the two insurance policies, upon which plaintiffs grounded their action, intended by use of the word 'explosion' in the extended coverage clauses of the policies, and it is doubtful if such evidence had been offered whether the same would have been admissible. It was clearly the function of the trial court to interpret the meaning of the word 'explosion' and to properly instruct the jury as to the proper meaning of such word in that part of the charge dealing with the first question of the special verdict. The effect of the instructions given, as hereinbefore quoted, was to leave to the jury the determination of the proper interpretation of the word 'explosion' in the policy.

The plaintiffs claim that the silo burst as a result of an explosion of carbon dioxide gas formed by the fermentation of the silage within the silo. The trial court did properly instruct the jury that if it believed that plaintiffs' silo was destroyed by reason of its own defects from overloading, or from the sheer weight of the silage contained therein, the jury should answer Question One of the special verdict 'No'. Nevertheless the giving of the further instructions, that if there was any doubt as to the meaning of any word in the policies, such doubt should be resolved in favor of the insured and against the insurance companies, was highly prejudicial and would warrant the granting of a new trial.

The defendants, by their motion for review, raise the question that it was error for the trial court to have denied defendants' motion for directed verdict made at the conclusion of the receipt of evidence in the trial below. In order to pass upon this contention it is necessary to review the evidence in the case bearing on the question of whether the bursting of plaintiffs' silo was caused by an explosion. Counsel for the plaintiffs in their reply brief state:

'We never contended that bursting from silage pressure is an explosion. There is no intimation in our brief to that effect.

'We make but one contention, and it is that there was an explosion of the silage inside the silo due to the gas pressure.'

Therefore the question on this issue resolves itself into whether there is any credible evidence in the record that would have sustained a finding by the jury that there was an explosion of gas within the silo that caused it to suddenly burst.

The plaintiffs are the owners of a 200-acre farm near Marquette in Green Lake county, having moved on to such farm in 1943. The silo was a concrete cylindrical structure, forty feet high and twelve feet in diameter on the inside. It had been built in 1921 with the use of wood forms. The procedure was to set the forms for the silo wall and then pour the fresh concrete into the forms to set. A total of six feet was poured each day, two feet at a time, and three times per day. The walls were eight inches thick and there was no vertical reinforcement in the concrete. Horizontal reinforcement was supplied by three strands of No. 9 steel wire, twisted together and placed in two-foot intervals in the poured concrete as the silo wall was formed.

The dome-like roof also was made of concrete and there was a canopy vent at the peak of the roof and a window in the roof that was big enough for a man to crawl through even when the pipe from the blower was run through the window. The silo stood on the north side of...