Pennsylvania Millers Mutual Insurance v. Heule

232 S.E.2d 267, 140 Ga. App. 851, 1976 Ga. App. LEXIS 1645

• Court: Court of Appeals of Georgia
• Decided: December 1, 1976
• Docket: 52815
• Status: Published

Opinions

Webb, Judge.

Heule purchased from appellant a comprehensive physical damage insurance policy on a chicken house covering losses up to $35,000 sustained by fire, explosion, windstorm and hail, and supplemental coverage for other described exigencies. Coverage was afforded for "Explosion Damage: Meaning only direct loss to the property insured hereunder from explosion caused by the rapid combustion of any volatile or combustible substance .. .” (Emphasis supplied.)

The insured building, an "Environmental Control Layer House,” was built in 1970 for the purpose of boarding baby chickens until they attained a certáin weight. It was approximately 270 feet long and 35 feet wide, of wood frame with aluminum sheeting on the roof and side walls and insulated with fiberglass padding. The roof structure was composed of prefabricated rafter trusses with no internal support columns. Four rows of double metal cages in three-high tiers were suspended from the lower rafter trusses for the length of the building, with the exception of twenty feet at the utility room end and ten feet at the other end. There were 2,496 cages in the building. Ventilation was provided by twelve exhaust fans and the building was lighted by open wiring with 40-watt bulbs down each aisle.

On July 21,1972, Heule had completed two 20-week feeding contracts and his chicken house contained approximately 29,000 chickens ready for delivery. When he returned home that afternoon he found that the roof had caved in where the trusses over the center aisle had opened up at the gusset plate. The end gables were not affected, the fans were still on, the aluminum sheeting on the roof and sides was not dislodged and no glass was broken. In the area where the cages were warped by the falling roof, 500 chickens had been trapped in the liquid manure beneath the cages and were dead. None were cut, mutilated or burned.

Heule’s chicken house was inspected by appellant’s field representative and an engineer retained by appellant, who concluded that the damages resulted from a structural collapse which was not covered by his policy. Appellant denied coverage and the loss was described on Heule’s 1972 tax returns as having resulted from the collapse of the building. However, on July 2, 1973, he brought suit against appellant alleging that his loss resulted from an explosion, and the jury found in his favor in the amount of $29,300. The insurance company appeals and we reverse.

" 'In an action to collect on an insurance policy, the insured must show that the occurrence was within the type of risk insured against to make a prima facie case.’ ” Ga. Farm Bureau Mut. Ins. Co. v. Alloway, 134 Ga. App. 660, 661 (215 SE2d 506) (1975) and cits.; Showers v. Allstate Ins. Co., 136 Ga. App. 792, 793 (222 SE2d 198) (1975). Coverage under Heule’s policy was for "explosion caused by the rapid combustion of any volatile or combustible substance . . .,” and not for structural failures. Thus Heule was required to prove (1) that rapid combustion (2) caused an explosion. In our view he failed to do either.

Heule testified that he had no theory as to the cause of the alleged explosion but he knew there was one. His conclusion was based upon the fact that he found the chickens dead where the building was "torn up” and he knew "something had happened.” He could not distinguish between damage that would result to rafters that had broken from an overload, and rafters damaged by an explosion. He could not account for the fact that the thin aluminum siding was not blown off the building immediately over the ruptured timbers. He conceded that the buckling of the building sides would result from the sinking of the crown of the roof, which would push out the wall. A neighbor testified that he "heard a noise that sounded like an explosion.” A relative who lived 300 yards from the chicken house stated that he was standing in his front yard when he heard a loud explosion; that he turned around and saw "a cloud of dust or smoke or something coming up from the chicken house”; and that "then the building began to collapse.”

Heule’s expert witnesses conjectured that either agricultural dust or methane gas could have served as the fueling substance for the alleged explosion and there was ample expert testimony as to how an explosion could have occurred. They also testified, however, that these substances in combustion generate heat and in rapid combustion create a flame front, but not one witness who inspected the building saw or found any evidence of charring, burning or scorching: "Not even a chicken feather was burned.”

"It is basic that an inference can be drawn only from a fact and that whether a fact will authorize a particular inference is a matter of law... 'There must be more than a "scintilla” of circumstances to carry the case to the jury. Georgia R. &c. Co. v. Harris, 1 Ga. App. 714 [(57 SE 1076) (1907)]; Green, Georgia Law of Evidence, 86,87, § 22. More than a "scintilla” of circumstances "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229 (59 SC 206, 83 LE 126). If it is permissible reasonably to draw a given inference from the circumstances proved, such inference is not mere speculation or conjecture. As Mr. Justice Cardozo (prior to his service on the Supreme Court of the United States) explained in People v. Van Aken, 217 N.Y. 532, 542 (112 NE 380), an inference is legitimate deduction whereas conjecture is mere unregulated suspicion..." McCarty v. National Life &c. Ins. Co., 107 Ga. (129 SE2d 408) . . . [And] 'When a witness states that he does not know which of two inconsistent things are true, it cannot be inferred therefrom that either the one or the other is the fact.'. . . [N]o inference of fact may be drawn from a premise which is wholly uncertain.’ [Cit.]” Layton v. Knight, 129 Ga. App. 113, 114 (198 SE2d 915) (1973).

Combustion is "the act or instance of burning.” Webster’s New International Dictionary (2nd Ed., Unabridged). As established by appellant’s experts, there are types of explosions which do not involve combustion, but in a combustion explosion material burns in air creating gases which cause a pressure rise. While the testimony of Heule’s witnesses proved that each heard a sound which he characterized as smoke or dust or something, neither the sound of an explosion, the sight of a cloud, nor the collapse of a building creates an inference that the sound or the cloud or the collapse was caused by the rapid combustion of a volatile substance. Conversely, the absence of any signs of combustion in the building was a circumstance sufficient to support an inference that the sound heard was not such an explosion. Indeed, the circumstantial evidence adduced upon the trial was totally compatible with a structural collapse and incompatible with a combustion explosion. Under "the established fundamental rules applicable to circumstantial evidence ... it is required that the circumstances relied upon be not only consistent with the conclusion sought to be established, but also inconsistent with every other reasonable hypothesis.” Ga. R. &c. Co. v. Harris, 1 Ga. App. 714, 717, supra; Radcliffe v. Maddox, 45 Ga. App. 676, 682 (165 SE 841) (1932).

Appellate courts will labor to retain intact verdicts returned by juries. However, we are also duty bound to be just before we are generous, and. "Courts have no more right by strained construction to make the policy more beneficial by extending the coverage contracted for than they would have to increase the amount of the insurance. [Cit.]’ ” Cotton States Mut. Ins. Co. v. Falls, 114 Ga. App. 812, 814 (152 SE2d 811) (1966). The burden of proof was upon Heule, and in lieu of carrying this burden with either direct or circumstantial evidence, he came forth only with conjecture and supposition. There was no evidence that there was an explosion "caused by the rapid combustion of any volatile or combustible substance .. as provided by the policy. Accordingly, the trial court erred in overruling appellant’s motion for directed verdict and for judgment n.o.v. based thereon.

Argued October 4, 1976 Decided December 1, 1976 Rehearing denied December 17, 1976 W. Ward Newton, for appellant. William T. Darby, Sr., Charles H. Andrew, Jr., Braziel & Braziel, William F. Braziel, Sr., for appellee.

Judgment reversed.

Quillian, P. J., Clark, Stolz, Marshall, McMurray and Smith, JJ., concur. Bell, C. J., and Deen, P. J., dissent.