MILLERS'NAT. INS. CO., CHICAGO, ILL. v. Wichita Flour M. Co.

• Citation: 257 F.2d 93
• Decision Date: 09 July 1958
• Docket Number: No. 5674,5675.,5674
• Parties: MILLERS' NATIONAL INSURANCE COMPANY, CHICAGO, ILLINOIS, et al., Appellants and Cross-Appellees, v. The WICHITA FLOUR MILLS COMPANY, Appellee and Cross-Appellant. The WICHITA FLOUR MILLS COMPANY, Appellee and Cross-Appellant, v. MILLERS' NATIONAL INSURANCE COMPANY, CHICAGO, ILLINOIS, et al., Appellants and Cross-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

257 F.2d 93 (1958)

MILLERS' NATIONAL INSURANCE COMPANY, CHICAGO, ILLINOIS, et al., Appellants and Cross-Appellees, v. The WICHITA FLOUR MILLS COMPANY, Appellee and Cross-Appellant.

The WICHITA FLOUR MILLS COMPANY, Appellee and Cross-Appellant, v. MILLERS' NATIONAL INSURANCE COMPANY, CHICAGO, ILLINOIS, et al., Appellants and Cross-Appellees.

Nos. 5674, 5675.

United States Court of Appeals Tenth Circuit.

June 9, 1958.

Rehearing Denied July 9, 1958.

COPYRIGHT MATERIAL OMITTED

O. B. Eidson, Topeka, Kan., and Lawrence Weigand, Wichita, Kan. (Donald A. Bell, Wichita, Kan., James W. Porter, Topeka, Kan., Depew, Stanley, Weigand, Hook & Curfman, Wichita, Kan., of counsel, and Lillard, Eidson, Lewis & Porter, Topeka, Kan., of counsel, on the brief), for appellants and cross-appellees.

Malcolm Miller, Wichita, Kan. (George B. Powers, Carl T. Smith, John F. Eberhardt, Stuart R. Carter, Robert C. Foulston, Robert N. Partridge, Robert M. Siefkin, Richard C. Harris and Gerald Sawatzky, Wichita, Kan., on the brief), for appellee and cross-appellant.

Before BRATTON, Chief Judge, and PHILLIPS and BREITENSTEIN, Circuit Judges.

BREITENSTEIN, Circuit Judge.

On its claim of an explosion loss, appellee, The Wichita Flour Mills Company,¹ recovered a judgment for $109,468.08, plus interest, against the eighteen appellant insurance companies.² Defendants admit that their policies cover loss by explosion and assert that there was no explosion but rather a structural failure for which they are not liable. Trial was to a jury which resolved the issue in favor of the plaintiff. By way of cross-appeal Flour Mills Company contends that the trial court erred in not allowing judgment for attorneys' fees under the applicable Kansas statute and in not allowing all items of interest to which it is entitled.

Plaintiff owned and operated grain storage bins in Wichita, Kansas. It had two groups or batteries of bins which were originally built in 1925 and which, though structurally separate, were served by the same head house. In the head house are the facilities to raise the grain from the ground to the tops of the bins for distribution to the individual bins through a system of belts and trippers operating in what is known as a gallery.

We are concerned with the south battery and particularly with interstice bin 314 which was surrounded by circular bins 105, 106, 505 and 506. The circular bins were in two parallel rows of three each. The interstice bins occupied the spaces between the circular bins with straight walls connecting the walls of the circular bins.

The total height of the structure was approximately 100 feet. The gallery was about ten feet below the roof. The bottom of the bins was 90 feet below the gallery floor. The bins sat on a concrete slab. Below the slab was a tunnel in which were located the facilities for removing grain from the bins.

On July 2, 1952, Flour Mills Company was engaged in filling interstice bin 314 with new wheat received from the harvest then in progress. There was no grain in any of the surrounding bins. Late in the afternoon bin 314 had been filled to within nine feet of its capacity and contained 2,323,740 pounds of wheat. Loading was continuing at the rate of about 6,000 bushels of wheat an hour. A breakout occurred affecting on the east the straight wall of interstice bin 314 and the adjoining portion of circular bin 505. On the west the straight wall of 314 and the adjoining wall of circular bin 106 gave way. The lower 25 or 30 feet of these walls were ruptured and the wheat burst out. The interior north and south walls of 314 and the interior walls of 106 and 505 were also damaged. On the east wheat poured out on the ground for a distance of about 85 feet. On the west the wheat pushed a boxcar onto its side. Some heavy slabs of concrete were 45 feet, and other pieces of concrete 70 to 75 feet, from the bins.

Shortly before the breakout, Graves, an employee of plaintiff, measured the height of the wheat in 314 and found it to be nine feet from the top. He returned to the head house and when about 135 feet from bin 314 and facing north and away from 314 he felt a "whoof" of air on the back of his head "just like someone had turned a giant big fan loose." This occurrence was so unusual that he went back to see if the conveyor belt and tripper were still operating. He found that they were functioning properly. He then returned to the ground floor, learned of the breakout, and turned off the machinery to stop the flow of wheat.

Two railroad employees, working in the near vicinity, heard an unusual noise and saw clouds of dust. One stated that he saw "a lot of dust and stuff flying through the air, which I found out to be concrete chunks." A woman who lived near the elevator heard an "extra boom or bang sound out of the ordinary." One elevator employee testified that he saw a cloud of dust that "was black in color, just a big black ball" and that it was blacker than wheat dust with which he was familiar.

Several witnesses, including some elevator employees, testified that they heard no unusual sound. There was no evidence of any flash, odor, burning or charring and there was no apparent disturbance of dust in the gallery area.

Two young defense witnesses testified that about 15 minutes before the breakout they noticed a crumbling or cracking of concrete at the base of bin 106 and also the fall of a piece of glass.

The walls of the circular bins surrounding 314 were shifted or displaced in some instances by as much as 15 inches. The concrete-slab base of the bins was damaged and showed spalling, fresh shears and cracks which appeared most serious at locations immediately below the bin walls. One crack went all the way through the slab. At places the walls of the bins were displaced outward. There was spalling, shearing and cracking of the upper portion of the bin walls. One of the beams supporting the gallery floor was dislodged and broken away. No stretching or elongation of the steel reinforcing rods was found.

The evidence is clear that, at the time of loading the bins with wheat, dust is always present and that there are often in the wheat bits of foreign material capable of producing a spark which will set off a dust explosion. Such explosions are recognized hazards in the grain elevator business.

The experts who testified agreed that the storage of wheat in plaintiff's bins imposed the greatest load on the bottom 25 to 30 feet. Primary damage to the bins occurred in such area. Plaintiff's expert witness McDonald expressed the opinion that a flash explosion occurred in the gallery above bin 314 where the spouts from the tripper were dumping wheat and that the shock of the explosion against the wheat in the bin was transmitted to the walls and carried to the point in the base where the walls failed. He also testified that in his opinion the breakout was not caused by the dead weight loading of the wheat.

Among the reasons which McDonald gave for his conclusions were these: The concrete was displaced a greater distance than it would have been by a mere structural collapse. The shattering of the concrete and the separation of the concrete from the reinforcing steel rods indicated that the failure had been abrupt and severe. This condition taken in connection with the damage to the concrete floor under the walls of the bins evidenced a shock load which could not have been caused by dead weight. The greatest displacement of bin 506 was at a point where there was no dead weight load. This in his opinion was damage by some force other than dead weight. There was no stretching or elongation of the reinforcing steel rods. This would be expected in the case of a structural collapse. The angle at which the wheat came to rest after the breakout was less than the usual angle of repose of wheat and indicated a force other than the mere collapse of the bin. The potential for a dust explosion was present at the time of the occurrence. The force of an explosion would be transmitted both through the wheat and through the voids in the wheat to increase the stress from the dead weight loading at the lower 25 to 30 feet of the bins, and such increased pressure would cause the walls to burst. He also considered the statements that there was a noise and the evidence of Graves that there was a swish of air from the area of bin 314 rather than a suction which would have caused an air movement in the opposite direction.³

For the defendants an insurance adjustor testified as to his examination of the premises on the day following the breakout and said that he found no evidence of an explosion. A physical chemist and three engineers, testifying for the defense as expert witnesses, said that there was no explosion and that the cause of the breakout was a structural failure. They were critical of the design and condition of the bins, stated unequivocally that the dead weight loading of the wheat in the weak structure exerted a sufficient force to rupture the walls, and were most positive in their disagreements with plaintiff's witness McDonald.

The only real dispute in the physical facts relates to whether there was an unusual noise at the time of the breakout. As to all other physical conditions the parties are in substantial agreement. The determination of the cause of the breakout depends upon the conclusions drawn from these facts. The plaintiff had one expert who testified that the cause was an explosion and not a structural failure. Four experts for the defendants gave evidence to the contrary. Where the evidence and the inferences reasonably deductible therefrom are such that reasonable minds may honestly draw different conclusions from them, the question presented is one of fact to be determined by the jury.⁴ The appellate court takes the view of the evidence most favorable to the prevailing party and will uphold the verdict if there is substantial evidence to support it.⁵ A verdict based on...