Stafford v. Fidelity Hail Ins. Co.

• Decision Date: 09 November 1946
• Docket Number: 36621.
• Citation: 162 Kan. 75,173 P.2d 1022
• Parties: STAFFORD v. FIDELITY HAIL INS. CO.
• Court: Kansas Supreme Court

173 P.2d 1022

162 Kan. 75

STAFFORD v. FIDELITY HAIL INS. CO.

No. 36621.

Supreme Court of Kansas

November 9, 1946

Appeal from District Court, Republic County; W. D. Vance, Judge.

Action by Dale Stafford against the Fidelity Hail Insurance Company on a crop hail insurance policy. Judgment for plaintiff, and defendant appeals.

BURCH J., dissenting in part.

Syllabus by the Court.

1. In the absence of an express provision in an insurance policy requiring damage to crops by hailstorm to be determined by a specific method, or methods, no particular valid method is exclusive.

2. Where evidence of damage by hailstorm to growing crops is highly conflicting and the jury, under issues joined by the pleadings, is not required to find there was a specific amount of damage, or no damage, its determination of the extent of damage will not be disturbed if its findings are reasonably within the range of evidence adduced.

3. The record in an action to recover damages to growing crops caused by hailstorm examined, and held: (a) District evidence and reasonable inferences the jury might draw therefrom support its findings; and (b) no reversible error appears.

G. A Spencer, of Salina (W. S. Norris, H. L. Smither and F. C Norton, all of Salina, and Fred D. Swoyer, of Belleville, on the brief), for appellant.

Fred Emery, of Belleville (Frank G. Spurney, of Belleville, on the brief), for appellee.

WEDELL Justice.

Plaintiff prevailed in an action on an insurance policy to recover damages to crops of wheat and oats resulting from hailstorm. The defendant insurance company appeals.

Appellant does not claim there was no evidence of damage to the crops. Its sole contention is the evidence failed to establish the particular percentage of damage to each crop assessed by the special findings of the jury. The jury found the wheat crop was damaged 45 percent and the oat crop 30 percent.

We shall first consider the evidence pertaining to damage of the wheat crop. It is, of course, elementary that on review this court is not concerned with evidence of either party that does not support or is contrary to the findings of the jury but is concerned only with ascertaining whether there is evidence which supports or reasonably tends to support the findings made. Appellant concedes this to be the rule on review. That the record before us would definitely support a finding of a larger percentage of damage to the wheat than that found by the jury cannot be doubted. Appellant, however argues there is no specific evidence to support the percentage of damage to the wheat found by the jury and that, therefore, the finding cannot stand.

A careful review of the record convinces us there is evidence which reasonably tends to support the finding. It is unnecessary to summarize all of such evidence. Two examinations of the damage were made. The first was made on the day following the hailstorm. The second was made 25 days later.

Appellee adduced evidence which, in substance, further disclosed:

A count was made by examining a given number of stalks, usually 100, in a single row; the rows were selected at random in different portions of the 100 acre field of wheat; 30 out of 50 stalks at the north side of the field were damaged; of the 50 damaged at the north end 10 were cut off entirely; farther south 35 or 40 stalks were found broken or damaged; 10 or 15 out of the 50 damaged stalks were cut off and 35 or 40 stalks were bent over and bruised; some of the damaged or bruised stems might straighten up; the wheat yield was nine bushels per acre; the wheat when damaged was knee-high, a good stand, and in the early boot stage.

In view of the foregoing and other testimony which might be narrated we think the jury was justified in considering all of the evidence and assessing the wheat damage at 45 percent. The finding was reasonably within the range of the testimony. Under such circumstances the finding will not be disturbed. Young v. Irwin, 70 Kan. 796, 79 P. 678; Balandran v. Compton, 134 Kan. 542, 546, 7 P.2d 510; Sheftel v. Kansas City Public Service Co., 137 Kan. 79, 81, 19 P.2d 434; Claggett v. Phillips Petroleum Co., 150 Kan. 191, 193, 92 P.2d 52; Taggart v. Yellow Cab Co. of Wichita, 156 Kan. 88, 131 P.2d 924.

Does the evidence support the finding of 30 percent damage to the oat crop? Pertinent evidence adduced by appellee, in substance, disclosed:

The oat field of 40 acres was located on the east side of appellee's farm while the wheat field was located on the west side thereof; the hailstorm covered not only appellee's land but also fields adjoining his farm on the southwest, west, across the road to the north and a farm located a quarter of a mile south; appellee had sowed over two bushels of oats to the acre during the latter part of March on disked corn ground; there was a good stand of oats; it had jointed but had not headed; it was 12 to 18 inches in height on May 12, the day of the hailstorm; three days after the storm the oats looked like a roller had rolled over them; they were flat and lying down, some were cut off and the ground was thick with foliage; the number of damaged stalks out of every 100 in a row was not counted because it was impossible to get 100 in a row to pull; the oats were down so badly they couldn't tell much about the condition; very few of the stalks were standing; the oats were thinned out so badly the field filled up with weeds; it was necessary to use a windrow, a power mower with a windrow on it, to mow the oats; the crop was then picked up with a combine; the oat crop was not as...