Travellers Indem. Co. v. B. & B. Ice & Coal Co.

• Decision Date: 24 March 1933
• Citation: 58 S.W.2d 640,248 Ky. 443
• Parties: TRAVELLERS INDEMNITY CO. v. B & B ICE & COAL CO.
• Court: Kentucky Court of Appeals

58 S.W.2d 640

248 Ky. 443

TRAVELLERS INDEMNITY CO. v. B & B ICE & COAL CO.

Court of Appeals of Kentucky

March 24, 1933

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Fourth Division.

Action by the B & B Ice & Coal Company against the Travellers Indemnity Company. Judgment for plaintiff, and defendant appeals.

Reversed.

Trabue Doolan, Helm & Helm, of Louisville, for appellant.

Woodward Hamilton & Hobson, of Louisville, for appellee.

RICHARDSON Justice.

The B &amp B Ice & Coal Company was the owner of a horizontal, tubular, 150 horse power boiler, encased with brick, and used by it in the manufacture of ice in its plant at Louisville, Ky. Its original cost was $1,500. It had been in use seven or eight years prior to its bursting which is the cause of this litigation. The cost of setting and encasing it was about $1,500, making the cost of the boiler in place at the time it was damaged, $3,000. The Travellers Indemnity Company, Hartford, Conn., for a premium of $218.40, issued its policy to the B & B Ice & Coal Company, insuring the boiler against explosion for a period of three years, beginning January 10, 1928, to January 12, 1931, 12 o'clock noon, standard time.

The policy defines the word "explosion" thus: "'Explosion' shall mean only the sudden rupture or sudden collapse of a boiler or of its furnace, flues, or other parts, caused by pressure of steam therein, or if used for the storage of compressed air, caused by pressure of air therein."

The insurance company limited its liability by this clause: "In no case shall the company be liable for more than the actual and immediate damage to property, estimated according to the true cash value of the property at the time of the explosion, proper deductions for previous depreciation having been made, nor in excess of the limits of indemnity."

The policy stipulates that the company's total liability on account of any one explosion shall not exceed $10,000.

It is claimed by the B & B Ice & Coal Company that on the 21st day of May, 1930, the boiler sustained a sudden rupture of its furnace caused by the operation of the steam therein, and it was thereby damaged $1,800. It gave immediate notice thereof to the Travellers Indemnity Company, but it failed and refused to pay the damage, hence this action.

The insurance company as a defense presents a traverse. A trial before a jury resulted in a verdict in favor of the B & B Ice & Coal Company for $1,800. The insurance company is here seeking a reversal, claiming that the evidence does not show that the explosion was one within the terms of the policy, or if it was, then "the damages awarded by the jury were excessive, and not assessed according to the correct rule."

It concedes that a rupture occurred, but insists that it "was not sudden within the meaning of this word, as it is used in the policy."

On this theory, at the conclusion of the evidence of the plaintiff, and also at the conclusion of all the evidence, it offered a peremptory instruction which was refused by the court. The court gave instructions 1, 2, 3, and 4. Instruction No. 1 directed the jury if they believed from the evidence the boiler exploded, to find for the B & B Ice & Coal Company. Instruction No. 2 is a converse of No. 1; No. 3 defined the word "exploded" or "explosion" in the language of the policy, and No. 4 fixed the criterion of damages. The insurance company offered an instruction directing that unless the jury believed from the evidence the rupture of the boiler occurred suddenly, then there was no explosion. Instruction No. 2 offered by it merely directed the jury that the defendant had the right to repair the boiler, and that it was not liable for the cost of repairs if the explosion occurred as defined in instruction No. 1, offered by it. The determinant question is, "Was there a sudden rupture of the boiler as this term is used in the policy?"

The evidence for the insurance company shows that the cause of the damage to the boiler was a deposit of sediment, either of scale, oil, or other substance. The time ordinarily required for the assembling of such a deposit is from 10 to 12 hours. The effect of such deposit is that where it gathers the plate or metal opens after stretching down to a thinness of from 7/16 of an inch to 1/4 of an inch, getting so thin it cannot hold the pressure.

For the B & B Ice & Coal Company it is shown that the boiler would be operated for seven days; then taken out of use, permitted to cool down, inspected, and cleaned generally, and that it had been inspected and thoroughly cleaned by one of its employees going inside of it four days before it is claimed the sudden rupture occurred. On the day it is claimed it ruptured, as well as on every day, it was observed at intervals by the foreman and other employees to enable them to know and determine it was intact at that point where a deposit usually gathers and causes a rupture. One or more of its employees claim that about 15...