ORIENT INS. CO. v. LEONARD, 120 F. 808

BAKER, Circuit Judge, having made this statement, delivered the -opinion of the court. A consideration of what was decided on the former writ will greatly simplify the solution of the principal questions now presented. Mr. Leonard’s own case showed that an explosion, and not a fire, caused the fall. It was, therefore, necessary to decide whether, when the ensuing fire reached Mr. Leonard’s property, the insurance had not already ceased by virtue of the second condition quoted in the statement.

In .determining this, the court had regard, also, for the first •condition, namely, that the company would not be liable for loss ■caused directly or indirectly by explosions of any kind, and for the exception to thát condition, namely, that the company would be liable for damage by fire ensuing upon an explosion. The court found that the wording of the second condition was “unqualified and universal, admitting of neither

interpretation nor construction,” but that an application of it to the case in hand would utterly destroy the liability “carefully and precisely defined” in the exception to the first condition. The court thought such a result was not intended, and therefore held the second condition inapplicable. “In this way,” the •court concluded, “the two clauses may well stand together, neither interfering with the legitimate office of the other.” Now, when Mr.

Leonard, on the second trial, again produced evidence that an explosion in the neighboring mill made.a hole in the wall, through which the fire ensuing upon and connected with the explosion entered, and destroyed his stock, the court was not at 'liberty to follow its own or counsel’s view of the law in ruling on the company’s motion for a directed verdict in its favor. The law of the case, determined by the former decision, required the denial of the motion, and the submission of the evidence to the jury.

And,- since its motion for a new trial was overruled, it is futile for the company to undertake to demonstrate on this writ that the preponderance •of the evidence proved that the wall fell by reason of inherent defects of construction, or overloading, or both. The material and sharply marked conflict in the evidence occured with respect to the cause of the wall’s tumbling, for on this depended the applicability of the “falling clause”'of the policy.

After stating the respective contentions of the parties, the court continued his charge as follows: “If you find from the evidence that the plaintiff has established Ms ease by a preponderance of all the evidence, that plaintiff’s building or some part thereof fell by reason of some concussion occurring outside his building (for I recall no evidence tending to show an explosion or concussion inside said building), or from fire either outside or inside said' building, and that plaintiff has otherwise so proved Ms contentions, and that, through such explosion or fire, fire in plaintiff’s building ensued or was communicated thereto from without, and his said stock was destroyed or damaged, then plaintiff is entitled to recover herein for such loss as hereinafter stated.

If, however, you find that plaintiff’s building, or some material part thereof, fell by reason of its own defects, or overloading, or both, plaintiff cannot recover for ensuing fire loss, under the terms of the policy sued on.” Under the former decision this charge correctly construed the policy, and applied its terms to the conflicting evidence. It is needless to set out the company’s various requests for instructions in regard to the conditions in the policy; for, so far as they ran counter to the former decision, they were properly refused, and those that were correct merely duplicated the charge given.

The company is very earnest in its insistence that, on account of the great volume and high character of the testimony in support of its theory that the wall fell from defects or overloading, the court should have elaborated and dwelt more largely upon the meaning of the “falling clause,” and its bearing upon the evidence. The company’s defense was not a confession and avoidance of Mr. Leonard’s case; it was simply a denial that the wall fell as the result of the explosion claimed by the plaintiff.

And, no matter how vehement and strongly supported the denial, the court was not required to do more than place the conditions of liability before the jury clearly and directly once. Repetitions of the same idea in varying phraseology would only tend to confuse the jury, leading them possibly to believe that distinctions were intended which they failed to grasp, where none existed.

Witnesses were permitted, over the company’s objection, to testify in regard to the condition of the mill at and before the alleged explosion, the amount of mill dust collected, the omission of known appliances to prevent the escape of mill dust, etc. All this was material within the approved definition that “a fact is material which renders probable the existence or nonexistence of a fact in issue.” The explosiveness of mill dust was explained by experts, and some experiences were, stated. Objections to a comparison with gunpowder and to a failure to give dates of experiences are manifestly untenable.

Hypothetical questions were objected to on the ground that facts were included which were not conceded to be true, nor established by the evidence. A hypothetical question may call for an opinion based on facts assumed. If the facts are not eventually proven, the weight of the answer is destroyed, Wt error cannot successfully be predicated on the court’s permitting the question to be put. . Finally, an instruction in regard to the amount of recovery is criticised.

The court told the jury that if they found “that the property of the plaintiff, described in the policy of insurance, contained in plaintiff’s said building, was destroyed or damaged by fire to an amount exceeding all the insurance plaintiff had upon it at the time of the loss, if any, then plaintiff is entitled to recover herein from the defendant the sum of five thousand dollars (the face of the policy), with interest at the rate of five per cent, per annum from February i, igoo.” This instruction did not relieve the jury from determining for themselves whether the damage by fire exceeded the whole amount of insurance.

It expressly submitted that question to them. Under the evidence the only possible source of damage other than fire was the fall of part of the building. The only legitimate inference from the instruction was that, if the jury found the damage by fire to be -less than the total insurance, their verdict should be for such-proportion of the loss by fire as the company’s policy bore to the total insurance. Probably it would have been better if the court had made an explicit statement of this to the jury. But any possible error in failing to do so was rendered^ harmless by the state of the evidence.

We do not find in the record any evidence on the part of the company in reference to the amount of loss by fire and the amount resulting from the partial fall of the building. The total insurance was $76,500. The value of the insured stock was $130,000. From the evidence on behalf of Mr. Leonard the utmost the jury would have been justified in finding was that one-fourth of the stock was disturbed by the fall, and that this portion was damaged to half its value. The loss thus shown to be attributable to the explosion might be trebled, and the fire loss would still materially exceed the-whole insurance.

The judgment is affirmed.