Laclede Fire-Brick Manuf'g Co. v. Hartford Steam-Boiler Inspection & Ins. Co., 318.

• Decision Date: 29 January 1894
• Docket Number: 318.
• Citation: 60 F. 351
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: LACLEDE FIRE-BRICK MANUF'G CO. v. HARTFORD STEAM-BOILER INSPECTION & INS. CO.

60 F. 351

LACLEDE FIRE-BRICK MANUF'G CO. v. HARTFORD STEAM-BOILER INSPECTION & INS. CO.

No. 318.

United States Court of Appeals, Eighth Circuit.

January 29, 1894

J. E McKeighan (B. D. Lee, J. P. Ellis, and H. S. Priest, on the brief), for plaintiff in error.

Leo Rassieur (Benjamin Schnurmacher, on the brief), for defendant in error.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.

SANBORN Circuit Judge.

At the close of the plaintiff's evidence the circuit court directed the jury to return a verdict for the defendant. This writ of error is sued out to reverse the judgment upon this verdict. There was but one question of fact in the case, and that was whether or not a policy of insurance, which confessedly, prior to that date, did not cover the boiler which exploded, was so modified February 24, 1892, by a verbal agreement, that it did cover it on March 21, 1892 when it exploded.

The Laclede Fire-Brick Manufacturing Company, the plaintiff in error, was a corporation engaged in manufacturing fire brick at Cheltenham, in St. Louis. In May, 1891, it had seven steam boilers, and no more, on its premises. It made a written application to the Hartford Steam-Boiler Inspection &amp Insurance Company, the defendant in error, a corporation engaged in the business of insurance, to insure these seven boilers against explosion; and on May 8, 1891, the defendant issued to the plaintiff its policy upon the seven specified boilers, insuring each of them, in the sum of $30,000, for three years, against explosion, provided the pressure of steam did not exceed 100 pounds per square inch on six of the boilers nor 35 pounds per square inch on the seventh, when the explosion should occur. The defendant was a Connecticut corporation. The policy provided that it should not bind the defendant unless it was countersigned by C. C. Gardner, its general agent, and it was so countersigned. The plaintiff alleged in its petition that on February 24, 1892, this policy was modified by the agreement of the defendant so that, without the payment of any additional premium, it thereafter covered nine boilers of the plaintiff, whenever only seven were exposed to the pressure of steam, and that on that day the defendant caused the two additional boilers to be inspected, and reported them sound. The defendant, by its answer, denied the agreement of modification, and alleged that the plaintiff applied to it for such a modification, and it caused the boilers to be inspected, and found that the attachments were not completed, and the boilers were not sound, and declined to insure them until the defects were remedied, and the attachments made.

In the conduct of its business, the defendant caused the boilers it insured to be inspected and tested, before taking risks upon them, and every few months during the continuance of the risks. The men it employed to make these tests were called 'inspectors.' On February 24, 1892, Mr. Eickhoff, one of the defendant's inspectors, tested the boiler which exploded, at the request of the plaintiff, and told the plaintiff's engineer that it was sound; but it was not then inclosed, nor were the attachments to it made, and it was not subjected to steam pressure until March 19, 1892. There was no testimony that the general agent or any officer of the defendant made, or was informed of, any modification of the policy; but the agreement concerning it was claimed to have been made with the inspector Eickhoff, and is based on the following testimony: Mr. Green, the president of the plaintiff, testified: That Mr. Eickhoff was one of the defendant's inspectors. That he first met him at some time while the plaintiff was insured by the defendant in the sum of $10,000 by a former policy. That, at some time subsequent to this first meeting, Mr. Eickhoff told him that he could not afford to inspect the plaintiff's boilers every few months for the money he was getting for it, and suggested that the plaintiff raise its insurance to $30,000, and he replied: 'All right. Go ahead, and make it thirty thousand dollars.' That at that time he told Mr. Eickhoff that he might put in additional boilers, and that, if so, they would be auxiliaries or duplicates; that the risk would be no greater; that six boilers would be running for two weeks, and seven for the next two weeks, and the rest would be idle,--and Mr. Eickhoff said, 'All right,' the insurance by the policy would certainly cover this risk, as it was less every two weeks, and no greater at any one time. That he supposes they talked this a dozen times. He testifies that, after this talk, Mr. Eickhoff either brought to him, or left on his desk, the written application for the policy on the seven specified boilers then on his premises; that this application was not filled out by any one connected with the plaintiff; that he signed the application for the plaintiff, as president, and delivered it to Mr. Eickhoff, who took it away, and brought back, and delivered to him, the policy of May 8, 1891; that he never had any conversation with any agent or officer of the defendant, except Mr. Eickhoff, regarding his insurance, until after the explosion. He testifies that he was the president of the Helmbacher Steam-Forge Company, which operated a rolling mill, and was not insured by the defendant; that shortly after the policy was issued he bought the two additional boilers, one of which subsequently exploded, for that company; that he did not then intend to have them insured, but intended to use them at the rolling mill; that before buying them he asked Mr. Eickhoff, as his friend, to inspect them for him, so that he might know whether or not they were a good purchase, and he did so, and reported them sound; that about six months later he asked him to inspect them for him again, and he did so, and reported that they needed some little repairs, which he caused to be made; that he then bought them for the plaintiff, and took them to Cheltenham, and put them up, and that when the brick walls were up about four feet he sent for an inspector; that Mr. Eickhoff responded to the call, and he asked him to inspect them again, and have the city inspector test them, and 'he says to me: 'You telephone to your engineer to let the water out of the boiler. Our inspection is good enough. I will go out this afternoon and tell him so,' which he did. During this conversation, I asked him if he considered those boilers insured, and he says, 'I do.' I says, 'Will you attend to this business for me.' * * * He says: 'I will. It is all right. Go ahead.' He told me the boilers were insured, and they were in good shape; to 'go ahead and put them walls up. The boilers are all right.'' He testifies that this was all the talk there was about insuring these boilers, at the time they were put up; that this was at the continuance of a six-months talk; that he and Eickhoff had had a dozen conversations about it; and that Eickhoff may have said the insurance would cover these boilers three or four times before that, George R. Blackford, the secretary of the plaintiff, testified that Mr. Eickhoff solicited Mr. Green to take the policy, and that, when the question of insuring the two additional boilers came up, he 'said that the boilers would be insured under that policy;' that the second day after the explosion he went with Mr. Green to see Mr. Gardner, the general agent of the company; that Mr. Gardner said that the boilers were not insured under that policy, and 'Mr. Green then told him that it was his understanding with Mr. Eickhoff that the boilers were insured under that policy;' that at this interview Mr. Gardner stated that the boilers were inspected February 24, 1892; that they were not then complete, and imperfections were pointed out, so that they were not in condition to be passed; that he showed them a copy of an inspection report of that date in the book of inspectors' reports, and said that a copy of that report had been sent to the plaintiff, and that he would send it another copy; that the next day the plaintiff received a copy of such a report, which bears date March 24, 1892, has the words, 'Take notice,' 'Repairs ordered,' on one side of it, and states that the boilers are defective, dangerous, and incomplete; and that the plaintiff never received any copy of such a report before that day, and had never asked for any inspection after the attachments of the boilers were completed.

Judges of the federal courts are not required to submit a case to a jury merely because there is some evidence in support of the case of the party who has the burden of proof, but it is their duty to instruct the jury to return a verdict against the party in any case in which they would be compelled to set aside a verdict in his favor, if rendered. Commissioners v. Clark, 94 U.S. 278, 284, and cases cited; Gowen v. Harley, 6 C. C. A. 190, 56 F. 973, 980, and cases cited. Was this evidence of such a character that it would warrant a jury in finding a verdict in favor of the plaintiff? This question must be determined by a consideration of the conversation of February 24, 1892, in the light of the surrounding circumstances. Unless that talk constituted a contract of modification of the policy, it was never modified. There is nothing in the evidence regarding the inspection of the boilers and the report of Eickhoff on that day, or the action of the defendant upon his report, that even approaches proof of a contract. It appears that in the course of its business the defendant caused boilers to be inspected before it insured them, to see whether or not it was wise to do so, as well as after they were insured, to see whether or not it was safe to continue its insurance; so that the fact that they were inspected tends as strongly...