Zamboni v. Implement Dealers' Mut. Fire Ins. Co., 26502.

• Decision Date: 16 March 1928
• Docket Number: No. 26502.,26502.
• Citation: 174 Minn. 122,218 N.W. 457
• Parties: ZAMBONI et al. v. IMPLEMENT DEALERS' MUT. FIRE INS. CO.
• Court: Minnesota Supreme Court

218 N.W. 457

174 Minn. 122

ZAMBONI et al. v. IMPLEMENT DEALERS' MUT. FIRE INS. CO.

No. 26502.

Supreme Court of Minnesota.

March 16, 1928.

Appeal from District Court, Steele County; Norman E. Peterson, Judge.

Action by E. C. Zamboni and others against the Implement Dealers' Mutual Fire Insurance Company. From a judgment for plaintiffs for less than the amount of a verdict, they appeal. Affirmed.

Sawyer, Gausewitz & Lord, of Owatonna, and Brown, Somsen & Sawyer, of Winona, for appellants.

Oscar Hallam, of St. Paul, and Charles G. Wright, of Duluth, for respondent.

HOLT, J.

Plaintiffs appeal from a judgment entered in their favor for $350 upon defendant's motion, after a verdict for $587.50. Plaintiffs moved for a new trial because of the inadequacy of the verdict. The motion was denied, while defendant's motion for judgment non obstante was granted.

The action is upon a policy issued by defendant, insuring plaintiffs against loss or damage by fire of a filling station in Owatonna, but "not to include loss or damage caused by explosions of any kind and unless fire ensues, and then to include that caused by fire only." It is conceded that $350 covers the loss and damage caused by fire only. There was also an explosion which bulged out the brick walls of the station and necessitated a rebuilding of the same, at least in part. The extent of the loss or damage caused by the explosion alone is in dispute. If the evidence warranted a recovery for the explosion, the verdict rendered was inadequate. The controversy between the parties appears to be whether the explosion was caused by a hostile or by a friendly fire, as those terms are understood in the insurance law; or, in other words, if the explosion followed as an incident of a hostile or involuntary fire, the defendant concedes it was not entitled to judgment non obstante. So that the question on this appeal reduces itself to this: Was the evidence so conclusive that the explosion resulted from an innocent or friendly fire as to preclude a jury from finding otherwise? For the purposes of this decision we shall assume that the court stated the law correctly when the jury were told that the burden was on defendant to prove that it was not liable for the damages caused by the explosion.

The filling station was the ordinary filling station, equipped as such, with office and toilets in the building. It was one-story and basement. In the basement were two gasoline tanks, of 550 gallons each; also an automatic "compressor," operated by electricity. The time of the accident was a still, warm, and muggy August morning, just before 12 o'clock. The driver of a gasoline tank truck was in the act of filling the basement tanks through a tube into a funnel set in a pipe just outside the wall, which led into the basement tanks. The attendant of the station had sold gasoline to three strangers, who drove up in an automobile, one of whom, Doherty, evidently entered the building for some purpose. The attendant stepped into the building for change, and gave it to the one outside, who had bought gasoline. As they were so standing talking, there was an explosion within the building, and immediately Doherty came running out with his clothes in flames. He was caught and thrown down by the attendant, and the fire in his clothes put out. He died from his burns, and no evidence as to his experience was obtained. No smoke or fire was visible before the explosion, nor did any blaze or flame survive it. No effect of the explosion was visible in the basement. Only the upper part of the stairway opening showed scorching. The woodwork in the rooms above the basement was more or less scorched. This scorching was evidently the result of the flame of the explosion, but which was not strong enough to set the woodwork on fire. The fire marshal, who was a block away when the explosion took place, saw no fire when he entered the building. He estimated the time to be less than three minutes between the explosion and his entrance. A doctor, who observed Doherty run out of the door afire, and who called on the attendant to catch and throw him down, testified that he entered the building a matter of a few seconds after the explosion, and saw no evidence of fire, except smoke from some rags in a corner near the stairway.

Persons both from the north and south side were looking at the building when the...