New Hampshire Fire Ins. Co. v. Plainsman Elevators, Inc.

• Decision Date: 03 June 1963
• Docket Number: No. 7262,7262
• Citation: 371 S.W.2d 68
• Parties: NEW HAMPSHIRE FIRE INSURANCE COMPANY, Appellant, v. PLAINSMAN ELEVATORS, INC., Appellee.
• Court: Texas Court of Appeals

Page 68

371 S.W.2d 68

NEW HAMPSHIRE FIRE INSURANCE COMPANY, Appellant, v. PLAINSMAN ELEVATORS, INC., Appellee.

No. 7262.

Court of Civil Appeals of Texas, Amarillo.

June 3, 1963.

Rehearing Denied Sept. 3, 1963.

Thompson, Coe, Cousins & Irons, Dallas, Day & Owen, Plainview, for appellant.

LaFont, Tudor, Tunnell, Formby & Reep, Morehead, Sharp, Boyd & Tisdel, Plainview, for appellee.

NORTHCUTT, Justice.

For convenience we will adopt the statement of the nature and result of the case as given by appellee. Suit was brought in the District Court of Hale County, Texas, by Plainsman Elevators, Inc., a corporation, against New Hampshire Fire Insurance Company on two separate insurance policies. One of the policies insured a large steel grain tank for the amount of $50,000; two all-steel small grain tanks, $5,000 each; dump and motors, $3,000; all-steel leg, $10,000; and by endorsement the policy was enlarged to insure one Shantzer drier for the amount of $23,000. The second policy sued on issued by the Defendant insurance company was to cover grain stored by Plainsman Elevators, Inc., for the amount of $700,000. Each policy was issued by the Defendant, New Hampshire Insurance Company to Lider Grain & Fertilizer, and by endorsement changed to read Plainsman Elevators, Inc., instead of Lider Grain & Fertilizer. Each policy contained insurance against extended coverage which includes 'explosion'. Plainsman Elevators Inc. alleged that the loss occurred by reason of an explosion and the Defendant insurance company contended that there was not an explosion but that the loss was due to the structural failure of the tank.

Upon a trial of the case before a jury, the Court rendered judgment in favor of Plainsman Elevators, Inc., upon the answers of the jury to the special issues submitted. The judgment is severable as to each item insured; that is, it granted recovery as to each item insured based upon the separate answers of the jury to the special issues, the total of all of which items was for the sum of $78,858.22, which included interest on said amounts due Plainsman Elevators, Inc., from the date of April 7, 1960. From that judgment the New Hampshire Fire Insurance Company perfected this appeal and will hereafter be referred to as appellant and the Plainsman Elevators, Inc. will be referred to as appellee. grain tank and the jury answered that there explosion of November 6, 1956, in the large grain tank and the jury ansered that there wad and the remaining issues were concerning the damage as to the separate items sued for.

The appellant presents this appeal upon fourteen points of error. The first point contends the court erred in admitting testimony of the witness, Weiland, with respect to hypothetical questions based upon assumptions of fact not supported by the evidence. After Dr. Weiland had testified for some time as to what he saw and other matters concerning his right to give his opinion as to whether there was an explosion, he was asked this question: 'Now, Dr. Weiland, taking into consideration all of the facts and circumstances that you have testified about here, and the pictures that you have examined, and the thermocables that you have examined--including this one here, to you have an opinion as to whether or not an explosion occurred out there as a cause for the rupture of this building, of this grain bin?' After that question was asked the following took place:

'MR. COUSINS: Your Honor, for the purpose of the possibility of an objection, may I ask one question?

'THE COURT: Yes. Go ahead.

'VOIR DIRE EXAMINATION.

'BY MR. COUSINS:

'Q Mr. Weiland, assuming that you do have such an opinion, are the things which Counsel has outlined to you in his question the things which you have taken into account in arriving at that opinion?

'A Yes, they are.

'Q Are they the only things which you have taken into account?

'MR. SHARP: Now, if Your Honor please, that wouldn't be any cause for an objection----

'MR. COUSINS: Yes, it would, too. I need an answer to this question. I think it is.

'MR. SHARP: Well, I don't care whether he needs it or not, that would not be any groundwork for any objection.

'THE COURT: Let him go ahead.

'Q (By Mr. Cousins) Let me ask this question. Mr. Weiland: Is your opinion in any way based upon what you were told by any of the people connected with Plainsman Elevators or with any other engineer?

'A No, it is not.

'Q It is not?

'A It is not.

'Q Then, am I correct in assuming that the only things you have taken into account are the things which Counsel has suggested to take into account in arriving at your opinion?

'A That's right.

'Q All right, sir.

'DIRECT EXAMINATION (RESUMED)

'BY MR. SHARP:

'Q Do you have such an opinion?

'A Yes, I do.

'Q What is that opinion, Mr. Weiland?

'A There was an explosion within the tank.'

After several other questions and answers were had this question was asked Dr. Weiland: 'All right. Now, let us go into something of the pressure that an explosion can produce. Let us assume that we had a pocket from bridging. Let us say we had one the size of a bushel basket and it was exploded, can you tell the jury something of the pressure that that would create?' Appellant excepted to the question and was overruled by the court. It is from this overruling by the court that point one is addressed. The question as asked was not answered by the witness but the following proceedings took place:

'A The pressure that may be created by an explosion will easily be as high as seven thousand pounds per square foot. In other words, you have an area of a square foot, or if you have a box, say, a foot each way, the pressure that may be created in that box may be as much as seven thousand pounds on each wall of that box.

'Q Now, in relation to what that pressure would do, can you give the jury an example that would illustrate just how much pressure that is and what it would do or could do?

'MR. COUSINS: If Your Honor please, until such time as he relates what it is that an explosion such as seven thousand pounds per square foot, and that it has some relationship of what may have, in his opinion, exploded in this tank, we're going to object to it.

'MR. SHARP: I'm talking about the type of gases that are produced from the grain that we have been talking about here.

'MR. COUSINS: I repeat my objection, if Your Honor please, until Mr. Weiland says that that's the kind of pressure created by this kind of combustible gas. I'm going to object to any testimony about what would happen under seven thousand pounds per square foot.

'Q (By Mr. Sharp) Mr. Weiland, when you answer, why, relate it to the kind of explosion from the kind of gases that would be produced from the grain like you have testified about here.

'A Okay. The gases that are produced in addition to which we have referred in this case, such as the gases are formed by deterioration process, will produce sufficient energy, will liberate--the explosion of these gases will liberate sufficient energy to raise a weight of one ton to a distance of two hundred feet into the air.

'MR. COUSINS: How much gas are you talking about Doctor? (Directed to the witness.)

'A What?

'MR. COUSINS: How much gas are you talking about? (Directed to the witness.)

'A I'm talking about a cubic foot of this gas.

'Q (By Mr. Sharp) All right. And would that be sufficient pressure, Doctor, in your opinion, to cause a collapse of a building like we have been--like built out of steel that you saw out there?

'A Yes, it certainly would.

'Q Is it your opinion from all of your examinations, investigations, that such an explosion did occur?

'A Yes, it is.

'Q And at the occasion that we are talking about on the morning of November 6, 1959, in the Tank No. 1 that you viewed the pictures of?

'A Yes, sir.'

The final answer was not objected to. There were similar questions propounded to the expert witnesses concerning the power of an explosion and the cause thereof and received without objection. The question involved was whether there was an explosion. Two of the expert witnesses testified in favor of appellee and one in favor of appellant. The point complained of was not based upon a hypothetical question as to whether or not there was an explosion but was as to the pressure that would be created.

It appears to be settled in this state that objections to certain evidence are unavailing when similar evidence to the same effect is offered and received without objections. Bolstad v. Egleson, Tex.Civ.App., 326 S.W.2d 506 (NRE); Lubbock Bus Company v. Pearson, Tex.Civ.App., 277 S.W.2d 176 (NRE); Rowe v. Liles, Tex.Civ.App., 226 S.W.2d 253 (Writ refused). Appellant's first point of error is overruled.

By appellant's point two it is contended that the court erred in overruling objections to testimony of Weiland because it was based upon hearsay. We think what has been said as to point one above will dispose of issue two. No objection was offered to the testimony given by Weiland when he testified that his opinion was not based upon what he was told but was based solely upon the things counsel has suggested to take into account in arriving at his opinion. No objection was taken at that time as to the basis upon which Weiland based his opinion that there was an explosion. Texas Employers' Insurance Ass'n v. Hicks, Tex.Civ.App., 271 S.W.2d 460 (Writ dismissed) and the cases there cited. We overrule appellant's second point of error.

Appellant's points three and four insist there was no evidence and insufficient evidence to sustain the findings of an explosion and the findings of explosion was against the overwhelming weight and preponderance of the evidence. Mrs. Frasier testified she was about one city block from the elevator and further testified as follows:

'Q (By Mr. Sharp) All right. On the morning of November 6, what--did you hear anything that woke you up, let's put it that way.

'A What did I hear?

'Q Yes, ma'am.

'A Well, I...