Commercial Standard Insurance Company v. Feaster
| Decision Date | 02 September 1958 |
| Docket Number | No. 5825.,5825. |
| Citation | 259 F.2d 210 |
| Parties | COMMERCIAL STANDARD INSURANCE COMPANY, Appellant, v. F. L. FEASTER, doing business as Feaster Trucking Service, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Paul R. Kitch and Philip Kassebaum, Wichita, Kan. (Homer V. Gooing, Wayne Coulson, Dale M. Stucky, Donald R. Newkirk, Robert J. Hill, Wichita, Kan., were with them on the brief), for appellant.
Malcolm Miller, Wichita, Kan. (T. B. Kelley, Great Bend, Kan., George B. Powers, Gerald Sawatzky, Wichita, Kan., Kelley, Conner & Opie, Great Bend, Kan., Foulston, Siefkin, Schoeppel, Bartlett & Powers, Wichita, Kan., were with him on the brief), for appellee.
Before BRATTON, Chief Judge, and MURRAH and BREITENSTEIN, Circuit Judges.
B. D. Egbert owned a building in Pratt, Kansas. F. L. Feaster was engaged in the business of transporting petroleum products by crude oil tractors and trailer tanks. And Commercial Standard Insurance Company was engaged in the business of issuing policies of fire and extended coverage insurance. Egbert leased the building to Feaster. The lease provided among other things that Feaster should not be responsible to Egbert for damage or injury to the building by reason of fire, irrespective of cause, occurring during the occupancy thereof by Feaster. Commercial issued to Egbert a policy of fire and extended insurance covering the building. While the building was in the exclusive custody of Feaster under the lease, and while the insurance was in force and effect, the building was destroyed. Commercial paid to Egbert the face amount of its policy and then instituted this action against Feaster alleging that the building was destroyed by explosion; that the explosion would not have occurred unless Feaster had been guilty of careless and negligent conduct; and that upon payment under the terms of the policy, Commercial became subrogated to the rights of Egbert to recover against Feaster to the extent of the amount paid. By answer, Feaster pleaded that the building was destroyed by fire; that by the terms of the lease, Feaster bore no responsibility in damages to Egbert for such destruction; that Commercial had only such rights as it acquired from Egbert through subrogation; and that therefore Feaster was not liable to Commercial. The case was tried to a jury. When plaintiff rested, the court instructed a verdict for defendant. Judgment was entered upon the verdict, and this appeal brought the case here for review.
Although sometimes presenting difficulty in respect to application, a general rule firmly imbedded in procedural jurisprudence in the Federal courts is that on motion for a directed verdict upon the crucial issue of fact in a civil action at law, the evidence and the inferences fairly to be drawn from the evidence must be considered in the light most favorable to the party against whom the motion is directed. And if the evidence and the inferences fairly drawn therefrom — viewed in that manner — are such that reasonable minded persons in the exercise of fair and impartial judgment may reach different conclusions upon the crucial issue of fact, the motion should be denied and the question submitted to the jury. But it is the province and duty of the court to direct a verdict where the evidence is without dispute or is conflicting but of such conclusive nature that if a verdict were returned for the plaintiff or defendant, as the case may be, the exercise of sound judicial discretion would require that it be set aside. Slocum v. New York Life Insurance Company, 228 U.S. 364, 33 S.Ct. 523, 57 L.Ed. 879; Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L. Ed. 720; Pennsylvania Railroad Co. v. Chamberlain, 288 U.S. 333, 343, 53 S.Ct. 391, 77 L.Ed. 819; McKenna v. Scott, 10 Cir., 202 F.2d 23; Franks v. Groendyke Transport, 10 Cir., 229 F.2d 731; Brodrick v. Derby, 10 Cir., 236 F.2d 35.
Another equally well established general rule is that in order to warrant the submission of a crucial issue of fact to the jury for its determination, the evidence relating thereto must be based upon more than mere conjecture, speculation, or surmise. It must rise above mere alternative possibilities. It must bring the theory upon which reliance is placed to the level and dignity of a reasonable probability. Franklin v. Skelly Oil Co., 10 Cir., 141 F.2d 568, 153 A.L.R. 156; Fruehauf Trailer Co. v. Gilmore, 10 Cir., 167 F.2d 324; Bearman v. Prudential Insurance Company of America, 10 Cir., 186 F.2d 662; Independent-Eastern Torpedo Co. v. Ackerman, 1 Cir., 214 F.2d 775; Ralston Purina Co. v. Edmunds, 4 Cir., 241 F.2d 164, certiorari denied 353 U.S. 974, 77 S.Ct. 1059, 1 L. Ed.2d 1136.
Since the lease effectively protected Feaster from liability to Egbert for destruction of the building by fire, irrespective of the cause, and since Commercial asserted a right of recovery acquired by subrogation from Egbert, Commercial's case was geared to a destruction of the building by explosion. In other words it was necessary for Commercial to prove that the building was destroyed by explosion, not fire. In this setting, and in its effort to make a prima facie case for submission to the jury, Commercial adduced evidence which tended to establish these facts and circumstances. The building (a concrete block structure with sheet metal roof on wooden girders) was approximately forty-five or fifty feet square and was partitioned into three rooms. The room on one side was used as a shop somewhat similar to that of an ordinary garage. The room in the center was used as a washroom. And the room on the other side was used for office and storage purposes. There was a door between the shop and the washroom and one between the washroom and the room used for office and storage purposes. There were two sliding doors leading from the outside into the shop, and there was a swinging overhead door leading from the outside into the washroom. There was a heater in the shop and an open flame heater in the washroom. Sometime after twelve o'clock on the day in question a truck driver for Feaster brought his tractor and trailer tank to the building, backed the tank into the washroom, and put the tractor in the shop for repairs. The tractor and trailer tank had been used that morning for the delivery of some crude oil. The method of emptying tanks of that kind was by a hose located on the bottom of the tank. A safety cutoff valve was on a pipe underneath the tank to which the hose was connected. The cutoff valve was designed to prevent leakage....
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