Hart-Bartlett-Sturtevant Grain Co. v. Aetna Ins. Co.
| Citation | 365 Mo. 1134,293 S.W.2d 913 |
| Decision Date | 10 September 1956 |
| Docket Number | No. 44944,HART-BARTLETT-STURTEVANT,No. 1,44944,1 |
| Parties | GRAIN COMPANY, a Corporation, Plaintiff-Appellant, v. AETNA INSURANCE COMPANY et al., Defendants-Respondents |
| Court | United States State Supreme Court of Missouri |
Ralph M. Jones, Charles B. Blackmar, Blackmar, Swanson, Midgley, Jones & Eager, Kansas City, for appellant.
Donald N. Clausen, Chicago, Ill., Henry Depping, Joseph R. Hogsett, Kansas City, for respondents. Clausen, Hirsh & Miller, Chicago, Ill., Hogsett, Houts, James, Randall & Hogsett, Kansas City, of counsel.
VAN OSDOL, Commissioner.
This is an action on three certificates of insurance issued to plaintiff, the lessee-operator of the River-Rail Elevator located in Kansas City, Kansas. The certificates were issued by Underwriters Grain Association for and on behalf of the forty-eight defendant-respondent insurance companies which participated in the coverage for loss of grains and loss due to interruption of business, the measure of recovery for loss due to interruption of business being the directly resulting reduction of gross earnings. The certificate insuring the grain, contents of the elevator, was in the provisional amount of $5,000,000. Plaintiff sought recovery on this certificate in Count I of its petition. The coverage for loss of earnings was in two certificates, each in the amount of $342,000--(1) covering reduction in gross earnings for such length of time as would be required to rebuild, repair or replace such part of the elevator facilities as might become damaged or destroyed commencing with the date of damage or destruction, and (2) covering reduction of gross earnings for such length of time as would be required to resume normal operations commencing with the date of restoration. Plaintiff declared on these certificates in Count II of its petition. The three certificates contained identical extended coverage endorsements by which, for an additional premium, coverage was extended to include direct loss by 'explosion.'
The trial court submitted the issues of plaintiff's case to the jury. One decisive supporting issue was whether plaintiff's losses were due to explosion, or explosions. The jury found for the plaintiff, assessing its whole loss, with interest, in the total amount of $769,522.74; however, the trial court sustained defendants' motion for judgment in accordance with their motion for a directed verdict, set aside the verdict and judgment for plaintiff, and entered judgment for defendants, but overruled defendants' motion for a new trial. The trial court in sustaining defendants' motion for judgment specified the grounds: (1) the evidence conclusively shows that all of plaintiff's loss was caused by flood (a hazard not insured against), not by any explosion; (2) there is no evidence on which a jury could base a verdict for plaintiff on the explosion issue without resorting to guesswork, speculation, conjecture and surmise; and (3) it has previously been judicially determined that the very occurrences in the case at bar were not explosions, and therefore plaintiff is estopped from relitigating that question. Plaintiff has appealed.
The River-Rail Elevator is owned by the City of Kansas City, Kansas. It is located about a thousand feet from the Missouri River bank in the public levee area known as the Fairfax District, and is connected to a public wharf by a gallery with grain conveyor so that grain may be received and delivered from and to barges. It is also served by railroads and trucks.
The structure of the elevator consists of a headhouse (containing much of the elevator-operating machinery and bins, including at least one 'dryer bin' at the basement level), and of two batteries of round and interstice or 'star' bins, one battery consisting of ninety-five bins and the other of eighty-eight. The round bins each have an inside diameter of nineteen feet and a capacity of 24,400 bushels of grain. The interstice bins (comprising the spaces between the exterior walls of round bins) each has a capacity of 5,500 bushels. The bins are approximately one hundred five feet in height with walls of concrete six inches thick. The whole of the two batteries of bins is surmounted by a one-story structure called the 'Texas floor.' A relatively small, square aperture in the top of each and all of the bins of both batteries opens through the floor of the Texas floor. The bottoms of the bins are at the approximate ground level and constitute the ceiling of the basement of the elevator structure. July 13, 1951, all of the round and interstice bins, except nine, contained grain in some quantity. The grains were wheat, corn, and grain sorghums.
A 'draw-off' hole five feet in diameter is located in the center of the base or bottom (concrete 'slab' one foot thick) of each bin. The slab is 'hoppered' in a thirty-six degree slope down to the 'draw-off' hole. This conical upper side of each slab bin-base is called the 'concrete hopper.' Octagonal 'metal hopper bottoms' are fixed below to receive grain passing through the holes in the concrete hoppers. The hopper bottoms are attached to the concrete on the under side of the base of each bin. The various angles and are connected with various angles and are connected with elongated rectangular metal 'draw-off' spouts angling off at various degrees, through which, by opening slides or gates controlled by ratchets, grain may be permitted to flow from the bins through the holes in the concrete hoppers and on down through the hopper bottoms and connected spouts onto belt conveyors. The hopper bottoms of all of the forty-three bins with which we are directly concerned are alike in shape and size, except one--the rectangular metal hopper bottom of a dryer bin--this metal bottom is bolted directly to the under side of the concrete base of the bin.
Friday, July 13, 1951, the flooding waters of the Kaw River inundated areas of the industrial districts of Kansas City, Kansas, and in the late afternoon of July 14th, the waters broke through the river levee and inundated the area wherein the elevator is located. During the night of July 14th, waters came into the basement of the elevator, flooding everything therein, including the spouts and hopper bottoms, and rose until the waters had reached a level of 'slightly more than two feet' within the concrete hoppers of all of the bins. On the following day, July 15th, the waters began receding from the pavement and ground in the elevator area, but the basement of the elevator remained filled with water. Limited pumping-out operations were commenced on Monday, July 16th. The grains in the concrete hoppers had been wetted by the floods, however, and in the morning of July 17th grain was noticed on top of the water in the basement--it was ascertained that the hopper bottoms ('tanks') of some of the round and interstice bins were 'down,' permitting quantities of grain to come down through the five-foot draw-off holes into the water.
Each of the octagonally-shaped metal hopper bottoms had been held in place against the under side of the 'slab' bottom of a bin by sixteen 'clips,'--strips of low-carbon hot-rolled ductile steel, one-fourth inch thick, two inches wide, and six inches long; however, the contact between the metallic hopper bottoms and the slab was not airtight, watertight, or gastight. The sixteen clips had been fixed at only approximately equal intervals around the periphery of the draw-off hole in the base of a bin. Each of the clips had been fixed by a nut with washer to a five-eighths-inch bolt embedded in the concrete of the bin-base, the bolt passing through the clip two inches from one end, and the other end ('moment arm') of each and all of the sixteen clips of each bin lay under and supported the 2"' X 1 1/2"' angle-iron flange (3/6"' thick) riveted to the top of the sheet metal of each hopper bottom.
There was evidence that forty-two of the hopper bottoms of the round and interstice bins which had contained grain had been completely detached or expelled by some force or forces occurring after the inundation and partial recession of the flood waters; the draw-off spouts were bent or crushed and bracing hangers pulled or jerked and detached. And a corner of the rectangular hopper bottom of the dryer bin had become fissured or ruptured--the hopper bottom of the dryer bin had a 'split' down one corner, These occurrences had permitted large quantities of grain to pass down into the water in the basement.
It was and is plaintiff's theory that the wet grain within the hopper bottoms and bases of the bins expanded, and the expansion of the grain with its ensuing pressure was augmented by the generation of gases with increasing pressure resulting in the sudden and violent expulsion of the hopper bottoms; but, that, whatever occasioned the pressure in the bases of the bins, the hopper bottoms of the forty-two bins were displaced as a result of high-pressure force or forces, and that such expulsion of these hopper bottoms (and the splitting or rupture of the metal bottom of the dryer bin) and resulting loss of grain and of gross earnings were due to explosion within the meaning of the word 'explosion,' as used in the extended-explosion-coverage endorsements.
On the other hand, it was the theory of defendants (respondents-insurers) that none of plaintiff's damage or loss was caused by explosion. Defendants contended, and now contend, that the only reasonable conclusion which may be arrived at from the evidence is that the disengagements of the hopper bottoms were due to the slow and gradual swelling of the grain; that the grain, having absorbed the floodwaters, had taken on a slowly-increasing swelling and pressure, which...
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