Danielson v. St. Paul Fire and Marine Ins. Co.

• Decision Date: 24 July 1959
• Docket Number: No. 37643,37643
• Citation: 256 Minn. 283,98 N.W.2d 72,93 A.L.R.2d 137
• Parties: , 93 A.L.R.2d 137 Karl A. DANIELSON and Lucile W. Danielson, Respondents, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Appellant.
• Court: Minnesota Supreme Court

Page 72

98 N.W.2d 72

256 Minn. 283, 93 A.L.R.2d 137

Karl A. DANIELSON and Lucile W. Danielson, Respondents, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Appellant.

No. 37643.

Supreme Court of Minnesota.

July 24, 1959.

Syllabus by the Court.

1. In an action to recover on an insurance policy which insured plaintiffs' barn against loss from fire and windstorm, Held that the trial court properly denied defendant's motion for a directed verdict since, viewing the facts in the light most favorable to plaintiffs, the jury could find that the collapse of the barn resulted from windstorms and not from deterioration; that there had been no substantial increase in the risk which defendant insured; that plaintiffs' delay in making certain repairs was not unreasonable and in any event was known to the defendant which kept the barn insured; that the policy was in full force; and that plaintiffs were entitled to recover.

2. The trial court properly denied defendant's motion for judgment notwithstanding the verdict.

3. No prejudicial error resulted when the trial court failed to notify defense counsel to be present when it gave additional instructions requested by the jury.

4. Where an instruction is susceptible of two meanings, one which is correct and the other incorrect, the former is presumed to be the sense in which the instruction is given. Additional instructions given by the trial court were not inconsistent with and did not contradict the original charge.

Meagher, Geer, Markham & Anderson, W. D. Flaskamp, Mary Jeanne Coyne and O. C. Adamson, II, Minneapolis, for appellant.

Gleason, Ward, Orff & Johnson, Minneapolis, for respondent.

DELL, Chief Justice.

In this case a barn, owned by plaintiffs and insured by defendant, collapsed. This action was instituted to recover on an insurance policy which insured against loss from fire and, because of extended coverage, windstorm. The jury returned a verdict for plaintiffs, and defendant appealed from th denial of its alternative motion for judgment notwithstanding the verdict or for a new trial.

Plaintiff Karl A. Danielson was an employee of Thorpe Brothers, a real estate company in Minneapolis. Mr. Danielson and his wife, the other plaintiff herein, purchased a farm in Blue Earth County in 1946. They did not live on the farm but engaged a farm-management company and a tenant farmer to operate it. The former was responsible, among other things, for the maintenance and repair of the farm buildings. One of those buildings was the barn which, prior to the time that defendant insured it, had been insured with the Niagara Insurance Company for $6,000. It was Thorpe Brothers' policy to secure the insurance on property which its employees owned, if possible. It solicited this insurance from plaintiffs on behalf of defendant. This was the only company for which Thorpe Brothers were agents handling fire and extended coverage insurance on farms.

Before issuing the policy, a binder was placed on the property until it could be inspected. A binder is a type of temporary coverage which is used in some instances until the policy itself is written. The amount of insurance on the barn was reduced to $5,000 and it, along with the other farm buildings, was inspected by defendant's state agent, who made the following report:

'I inspected this farm, and the general condition of the buildings is fair to good and the amounts of insurance are pretty well in line. * * * The barn, while probably justifying the $5000 insurance, is older and should have some repair to sills. Part of the roof has apparently been hit by wind and has been patched here and there.'

On the basis of the agent's report and plaintiffs' application, defendant approved the risk and issued a 3-year policy on October 15, 1954, which included the following provisions:

'The Policy shall be void if * * * without the assent of the Company, * * * the situation or circumstances affecting the risk shall, by or with the knowledge, advice, agency, or consent of Insured, be so altered as to cause an increase of such risks * * *.

'If the insured property shall be exposed to loss or damage by fire, the Insured shall make all reasonable exertions to save and protect same.

'* * * (W)herever the word 'fire' occurs, it shall be held to mean 'windstorm, cyclone and/or tornado."

It is undisputed that the barn in some respects was seriously deteriorated. Some of the sills and uprights were rotted, and there was some 'waving' in the roof. The building was 18 inches to 2 feet out of plumb. Just a few days before it collapsed the door was seriously out of line and could not be closed. However, the tenant farmer continued to use it for milking and storage. Repeated attempts were made to have plaintiffs repair the barn. Mr. Danielson continually promised to undertake the repairs but always failed to do so. Nevertheless defendant continued the policy in full force and made no effort to cancel it until after the barn collapsed.

October 1956 was an unusually windy month and noticeable changes occurred in the barn. Just a few days before it collapsed there were strong winds with very strong gusts. On Thursday, the 11th, the wind reached 24 miles an hour with gusts up to 35 miles an hour. The next day, although it was not quite as windy, it was necessary to adjust the pipes from the milking machine inside the barn to the line into the milk house. On Saturday, October 13, there were winds up to 25 miles an hour with gusts of 38, and occasionally 46, miles an hour. The next day it was again necessary to reset the pipes from the milking machine. The building, however, did not fall then but collapsed on Wednesday, October 17, a day which was comparatively calm.

Plaintiffs claim that the collapse was the result of the preceding windstorms which left the barn in such a condition that the fall, although delayed, was inevitable. Defendant claims the collapse was due solely to the deterioration of the structure. The evidence is not conclusive either way. There was testimony concerning the extreme disrepair of the barn. There was also testimony that barns in similar states of disrepair in the area had not collapsed of their own weight. And there was testimony by a competent witness, who had done some appraising, that no barns with rotting sills on which he had written insurance (that is, barns that were insurable risks) had ever collapsed after only 2 years.

1. At the close of all the evidence defendant moved for a directed verdict on the ground that plaintiffs had failed to show that the barn collapsed as a result of windstorm. The motion was denied and one of defendant's assignments of error on appeal, although it is not strenuously advanced, is the trial court's failure to grant the motion and its subsequent denial of defendant's motion for judgment notwithstanding the verdict. Upon a motion for a directed verdict, the court must view the evidence in the light most favorable to the nonmoving party, admitting its credibility and all reasonable inferences to be drawn therefrom. Only when the court would be required to set aside a contrary verdict as being manifestly against the weight of the evidence, or where the verdict would be contrary to law, should the motion be granted. ¹

We are of the opinion that when the facts are viewed in the light most favorable to plaintiffs the jury could have found that the collapse of the barn resulted from the windstorms a few days earlier; that there had been no substantial increase in the risk which defendant insured; that plaintiffs' delay in making repairs was not unreasonable and in any event was known to the defendant which kept the barn insured; that the policy was, therefore, in full force; and that plaintiffs were entitled to recover. Mere lapse of time does not destroy a causal relationship. ² A new and sturdy barn which had withstood the winds' buffeting over an extended period and then fallen on a calm day shortly thereafter would not be exempted from coverage, and the jury could find that prior to the wind-storm in question plaintiffs' barn would not have fallen of its own weight and that the storm was the cause of the collapse. ³

An extensive discussion of the many pertinent opinions will serve no useful purpose. However a few are worthy of mention. In both Bogalusa Gin & Warehouse, Inc. v. Western Assur. Co., 199 La. 715, 6 So.2d 740, and Pearson v. Aroostook County Patrons Mutual Fire Ins. Co., 149 Me. 313, 101 A.2d 183, the insurers claimed that although the buildings involved fell during windstorms, the real cause of their collapse was decay. In the former case the building (199 La. 718, 6 So.2d 741) 'was some twenty-five years old and decay had set in in many parts of it. It was not in the best of condition at the time it was blown down.' In the Pearson case defendant argued that the day on which the collapse occurred (149 Me. 317, 101 A.2d 185) 'was 'nothing more than an ordinary March day in Maine, not a windstorm * * *" and that (149 Me. 316, 101 A.2d 185) 'the building could readily have collapsed from the force of a very light wind,' especially when '(t)here was no evidence of destruction of other property in the vicinity at the time the hen house collapsed.' Both courts held that the issues involved were fact questions notwithstanding the evidence of deterioration.

A stronger case is Schaeffer v. Northern Assur. Co., Mo.App., 177 S.W.2d 688. Two very windy days were followed by a day which, although windy, was calmer than the preceding days. On the evening of the third day the roof of plaintiff's building was damaged. The court held that whether (177 S.W.2d 691) 'the roof slid down of its own weight and not as the result of a windstorm' was for the jury despite 'testimony on the part of defendant that the roof was defectively constructed in that there were insufficient knee braces and collar beams and no bolts fastening the wall plates to the walls.'

Perhaps the strongest...