Johnson v. Hanover Fire Insurance Co

• Decision Date: 25 May 1943
• Docket Number: 2248
• Citation: 137 P.2d 615,59 Wyo. 120
• Parties: JOHNSON v. HANOVER FIRE INSURANCE CO
• Court: Wyoming Supreme Court

137 P.2d 615

59 Wyo. 120

JOHNSON v. HANOVER FIRE INSURANCE CO

No. 2248

Supreme Court of Wyoming

May 25, 1943

APPEAL from District Court, Natrona County, C. D. MURANE, Judge.

Action by C. P. Johnson against The Hanover Fire Insurance Company on a fire insurance policy. Judgment for plaintiff, and defendant appeals.

Modified and affirmed.

For the appellant there was a brief and an oral argument by R. R Rose of Casper.

This appeal involves a question of damages to wool stored in a warehouse in which a fire occurred. Appellant contends that the judgment for damages in the district court are excessive. The amount of wool involved is 34,000 pounds. The fire insurance policy under which the action was brought is set out in the plaintiff's petition. There is attached to the policy what is designated "wool grower's floater form" which contains certain stipulations. The policy was in force at the time of the claimed loss. The city fire department arrived on the scene promptly. As to the amount of water thrown into the basement by the department there seems to be a difference of opinion on the part of witnesses which was resolved by the trial court in plaintiff's favor. The evidence as to the treatment of the wool after the fire is voluminous. It was agreed by stipulation that the Casper price of plaintiff's wool the day before the fire was 25 cents per grease pound and that it was sold by the plaintiff in June, 1939, at the then market price without deduction for any damage incidental to the fire. Plaintiff had been holding his wool for a market advance. The plaintiff took the general position that it was impossible to tell the amount of damage of the property until it was sold and that it was the obligation of the appellant to pay the difference between the Casper market price on the day before the fire and the market price on the day of the sale. In other words the insurance company was obligated to gamble on the wool market for the benefit of the plaintiff. The unfortunate thing is that contrary to plaintiff's expectation the market went down instead of up. There was no competent evidence introduced as to the value of the wool after the fire. The competency of witnesses who attempted to testify as to value, was not shown. Hypothetical questions propounded to them were incomplete as to facts. There can be no liability under a policy of insurance providing for indemnity against direct loss or damage by fire where the insured property is not in fact damaged. The evidence shows that except for cost of reconditioning, which was paid by the defendant, there was no damage to the insured property. The plaintiff held his wool for a period of more than two years expecting the market price to improve and he obtained the full market price of undamaged wool at the time he sold and he sustained no loss whatever except the cost of reconditioning paid by the defendant. The contract of insurance obligated the insured to separate the damaged and the undamaged goods and the liability is restricted to the goods shown to be actually damaged. The evidence shows that not more than one-half of the wool was damaged but there was no separation of it from the undamaged wool. The claim for damage was predicated in part on the reluctance of buyers to purchase wool connected with circumstances of a fire. The witness, Barley, had no authority to bind defendant by anything he did in connection with safeguarding or reconditioning the wool. He merely held a certificate to sell insurance issued by the Wyoming Insurance Commission. The law of opinion evidence applicable is well settled. See 20 Am. Jur. 647 et seq.; see also 20 Am Jur. 651. The facts upon which an expert bases his opinion must be reasonably accurate as distinguished from mere conjecture. 20 Am. Jur. 667. A hypothetical question must include facts supported by evidence relating to the particular matter upon which an opinion is given. A witness may testify on his own knowledge, and in such case should testify as to the facts on which his opinion is based but if he testifies in answer to a hypothetical question, the question must be based on facts supported by evidence. 20 Am Jur. 756, 759, and 761; Ins. Co. v. Creech Drug Store, 75 S.W.2d 553; Mauvaisterre L. L. Dist. v Wabash R. Co., 22 A. L. R. 944; Kernochan v. N. Y. Elevated R. Co., 14 L. R. A. 673; as to market value see 38 C. J. 1261-1266; State v. James, 58 N.W. 67; Winnipiseogee L. C. & W. Co. v. Town of Gilford, 10 A. T. A. 849; Birmingham Co. v. Pulver, 18 N.E. 804; 29 Am. Jur. 890-891; Prussin Ins. Co. v. Lawrence, L. R. A. 1915 E. 489. Tested by the authorities cited we think there was no competent evidence of the value of the Johnson wool after the fire. 22 C. J. 184; German American Bank v. Spokane Co. (Wash.) 95 P. 261; Merrill v. Bentley, 130 N.W. 734; Municipal Co. v. Donovan Co., 142 S.W. 644. The amounts of interest allowed by the court on plaintiff's alleged loss is contrary to law. 15 Am. Jur. 582; Joyce on Insurance, 2d Ed., Vol. 5, Section 3459; Bridge v. Ins. Co., 1 Hall (N. Y.) 247; Himmeling v. Legion of Honor (Cal.) 33 P. 1130. Plaintiff's witness Baskett was not qualified to testify as an expert, and he was incompetent as a non-expert to express his opinion of value based upon facts assumed, not a hypothetical question, the objection to which should have been sustained. The court should have sustained defendant's motion to dismiss; defendant's motion to require plaintiff to separately state and number, should have been sustained. The judgment of the trial court should be reversed with instructions to enter judgment for defendant for its costs.

For the respondent there was a brief and an oral argument by M. L. Bishop, Jr. of Casper.

This appeal involves a claim for damage to stored wool in the use of water for the extinguishment of fire at another place in the warehouse. Appellant issued a fire insurance policy on respondent's wool and it is the contention of respondent that the judgment awarded respondent as plaintiff below was well supported by the evidence. A fire occurred during the early morning hours of September 24, 1937. Appellant's agent appeared on the scene and assumed responsibility for reconditioning, drying, and resacking the wool, that had been damaged by water and other causes. Respondent was out of the city and did not learn of the fire for several days after it occurred. The evidence shows that respondent's wool had a market value of 25 cents per grease pound, at Casper on the day before the fire. Wool buyers would not purchase it after the fire, except upon a seller's guarantee that the wool was not damaged as a result of the fire, a fact that was to be determined by the purchaser after the wool had been shipped to market. The best offer received by respondent after the wool had been dried and resacked was 12 1/2 cents per pound at Casper. It is true that in October, 1938, and in January, 1939, respondent received offers of 18 1/2 cents per pound for his wool, subject to his guarantee against damage but he could not safely accept such offers and could not sell it at all without such a guarantee. Appellant contends that there was no competent evidence of the market value of the wool after the fire. Respondent contends that there was competent evidence showing its value after the fire. The evidence showed that while the fire did not reach the wool, there was about 14 inches of water over the floor of the warehouse; that some of the wool sacks were knocked down into the water and saturated with water in which stored "mineral mix" had been dissolved. The processing of the wool by appellant's agent after the fire, was done in such a manner that the identity of the different classes of respondent's wool was confused, and it was impossible to determine which bags contained ewe wool, buck wool or yearling wool. This of course affected the marketability of the wool and its sale value. The evidence showed that the rehandling and resacking of the wool by appellant's agents, left it in small lumps and not in full fleece, moreover it had a very obnoxious odor all over which affected its sale value. Respondent contends that the policy issued by appellant covered all of the damages to the stored wool resulting from flooding the warehouse by the local firemen in extinguishing the fire which had started in some straw at another place in the warehouse. Appellant's counsel attempted to criticize the evidence submitted by respondent from experienced wool men, as to the value of this wool after the fire. The testimony of experienced men in giving their opinion based upon the facts and circumstances, was the only possible way to arrive at the value of respondent's wool after the fire. Standard Oil Co. v. Ervin (Wyo.) 8 P.2d 447; Pann v. Barry (Cal.) 4 P.2d 791; Kurn v. Westheimer and Daube (Okla.) 73 P.2d 835; Walter v. Echanis (Ore.) 95 P.2d 979; Ins. Co. v. Creech Drug Store (Ky.) 75 S.W.2d 553. The testimony of the respondent's witness Baskett was that of a man of wide experience as a producer and dealer in wool, for a period of about 30 years. It is well settled by this court that it is sufficient to incorporate into a hypothetical question the theory of plaintiff's case. Phifer v. Baker (Wyo.) 244 P. 637; Branson v. Roelofsz (Wyo.) 70 P.2d 589. Beginning at page 17 of their brief counsel for appellant entered upon a general discussion of definitions of market value. We feel that a careful examination of the authorities cited in his brief will show that they differ on the facts from the case at bar. The nature of the damage to respondent's' wool was by fire and the flooding of the warehouse to extinguish it was of such a nature that it greatly reduced the market value of respondent's wool and the only way that respondent...