Empire State Insurance Co. of Watertown v. Guerriero

⁵¹¹ Collins, J. delivered the opinion of the Court. Mary Guerriero, as plaintiff, appellee here, sued the three appellants jointly on three policies of fire insurance, in standard form, covering her property on Forrest Street in Baltimore. From a judgment in favor of the appellee the appellants appeal to this Court. Each policy contained an extended provision to cover, among other things, “explosions.” The trial judge in his charge to the jury gave the following definition of “explosion,” to which no exception was taken by any of the parties: “Explosion is to be understood in the sense that it is used by ordinary men and not in its scientific sense.

It may be regarded or defined as a bursting with violence and noise, because of internal pressure, or a sudden, violent bursting or breaking, caused by an internal force and accompanied by a sudden or rapid expansion of air and a sharp noise or report. In this sense, it is to be distinguished from an ordinary rupture or breaking without extreme violence. A mere rupture is not an explosion.” The appellants contend (1) that the trial judge erred in admitting in evidence the testimony of Henry E. Kreis who has been engaged in the heating and power plant construction business for the past forty years and who testified as an expert in the case; (2) that the court erred in refusing to direct a verdict for each defendant; (3) that the trial judge erred in his charge to the jury with respect to proofs of loss and waiver thereof. As we must pass upon the demurrer prayers it is necessary that we recite the evidence at some length.

Between the hours of 7:30 and 8:00 a.m. on January 20, 1948, the husband of the appellee visited the unheated building, covered by the insurance policies, and used as a warehouse incident to the grocery business conducted by the appellee. The temperature in Baltimore on that day varied from a minimum of 21 to a maximum of 38 degrees. In order to heat water to wash bottles, clothes, and rags, he lit the gas burner under the hot water heater which he testified had been in good condition. He saw ⁵¹² nothing wrong with it at that time.

He said that there was no gas escaping and no water around the heater then. In about forty-five minutes he returned to the building and found water dripping from the second to the first floor. He ran upstairs, smelled gas and turned the heater off, and then observed a stream of water coming from a hole in the coil. The loss was immediately reported to the appellants.

Mr. Henry E. Kreis, whose qualifications as an expert were not questioned, testified that he has been in the heating and power plant construction business since 1909, and has sold and installed a great many heaters of this type and has had experience with explosions of heating and hot water equipment. As a result of a telephone call he visited the appellee’s warehouse shortly after January 20th. He found the particular coil lying on a table. He examined it ánd saw the rupture in the bottom of the coil.

He examined the coil and testified that in his opinion “that hole was caused by an explosion, caused by abnormal pressure within the coil, which was built up by the gas burner. The gas caused pressure inside that coil. That could come from several reasons. It could come from cloggage in the lines; it could come from overloading and building up steam pressure in the coil and the pipe work and tank, or could come from part of the line being frozen, and when the gas was turned on, it built up pressure and caused it to explode.

The looks of the coil, the metal is turned out, showing an abnormal pressure pushed it out, an explosion pushed it out. In my opinion, if that coil had frozen, you would have seen water there first, some little bit of water, and shortly after you would have had a great deal of water and the coil would have cracked in a line parallel to the sides of the coil, it would not have blossomed out, ■ what we call blooming.” He testified that, even if the water had frozen in a solid mass of ice during the night and expanded and broken the coil, there probably would have been some drippage which would have been observed on the gas burner and which would have made it difficult to ⁵¹³ light. He said that in his opinion the coil burst because of an explosion and that is why so much water came out of the coil, because when the burner was lit probably all of the ice in the coil thawed out, and the pipe leading from the heater to the tank was still frozen because there was no circulation up there, and when that burst the water ran freely. Of course, no one heard an explosion.

When asked by the Court whether he had ever heard “of one of these things explpding,” he answered, “No, Your honor, I have never, in that type.” He evidently meant that he had never heard of an explosion in that particular design. However, he testified that he had had experience with from seventy-five to one hundred explosions in heating and water equipment. When asked how he reconciled the statement that this was an explosion, with the statement that if the water in the coil froze and the coil expanded it resulted in a bursted coil, he answered, “I said that the condition of that rupture, where that metal was turned out proved it was an abnormal pressure in there, an explosive pressure, that if that coil had frozen, it would split. I’ve seen a great many of them that have frozen and split and they split in a line parallel with the sides of the coil; they wouldn’t turn the metal out or bloom the metal out or blossom the metal out.” He emphasized in his testimony that the “blooming out” of the pipe indicates an explosion and not a freezing and if the pipe had frozen it would have split along its length.

He said if the break had been caused by freezing it would split parallel with the sides of the tubing and the metal would be somewhat parted to relieve the pressure caused by the ice. The appellants contend that the facts to be proven were within the ordinary knowledge and éxperienee of man and were not the subject of expert testimony, and the failure or inability of the appellee to produce proof of facts to support a finding of an explosion did not permit the substitution of expert testimony for factual testimony. They further contend that even though' expert testimony were admissible there was no factual basis ⁵¹⁴ shown or stated, upon which expert testimony could be predicated, and it was improper to permit the expert to characterize the occurrence as an explosion. They contend that there were not sufficient physical facts to permit an expression of opinion and when the expert testified that in his opinion there had been an explosion, he usurped the function of the jury.

It is of course well settled that the evidence of an expert witness is not admissible if the jury is able to decide or determine the question before it without special expert testimony. The witness must not usurp the province of the jury. Baltimore Belt R. Co. v. Sattler, 100 Md. 306, 334 , 59 A. 654 , 3 Ann. Cas. 660; Hanrahan v. City of Baltimore, 114 Md. 517, 527 , 80 A. 312 ; Capital Traction Co. v. Contner, 120 Md. 78, 83, 84 , 87 A. 904 ; Griffith v. Pullman Co., 142 Md. 514, 521 , 121 A. 362 ; Blinder v. Monaghan, 171 Md. 77, 87 , 188 A. 31 ; Bode v. Carroll-Independent Coal Co., 172 Md. 406, 418 , 191 A. 685 ; Long v. Joestlein, 193 Md. 211 , 66 A. 2d 407, 411 . If a matter is within the knowledge and experience of persons of ordinary judgment and experience, opinion evidence, expert or otherwise, should not be admitted.

If the facts can be intelligently understood by the jury and they can form a reasonable opinion from those facts for themselves, there is no reason to admit the opinion evidence of anyone. However, when the question involved is such that jurors of ordinary judgment and experience are incompetent to draw their own conclusion from the facts presented and intelligently decide the question before them without the aid of expert testimony, this opinion testimony is a notable exception to the well known rules of evidence. This exception should be applied with the greatest caution and discrimination. Harris v. Consolidation Coal Co., 111 Md. 209, 219 , 73 A. 805 .

It was said by this Court in the case of Langenfelder v. Thompson, 179 Md. 502 , at page 505, 20 A. 2d 491 , at page 493, 136 A. L. R. 960, “In accordance with the weight of authority, it has been held by this Court that while expert testimony is not admissible on a ques ⁵¹⁵ tion which the jurors themselves can decide from the facts, it is admissible when the formation of a rational judgment from the facts requires special training or skill. Consolidated Gas, Electric Light & Power Co. v. State, to Use of Smith, 109 Md. 186, 208 , 72 A. 651, 658 .” In the case before us the coil was admitted in evidence without objection and the jury viewed it. It is evident that a person of ordinary experience and intelligence could not tell from observing this break in the coil whether it was caused by an explosion or merely by the freezing of the pipe. It is a well known fact that ice has only a certain expansive distance.

There was no water on the burner before it was lit. The hole was at the bottom of the tube where the ice first melts. The “blossoming out” of the pipe was peculiar and supports the opinion of the expert. The jury could receive appreciable help from the expert.

Wigmore on Evidence, Vol. 7, page 21, paragraph 1923. In this case there was rational support for the opinion of the expert. In May Oil Burner Corporation v. Munger, 159 Md. 605, 620 , 152 A. 352 , an expert was permitted to testify whether the burners were of a size and design sufficient to generate steam in the boilers in which they were installed. It was held in Beck & Co. v. Hanline, 122 Md. 68, 80 , 89 A. 377 , it was competent for an expert to testify as to the effect of water pressure upon water pipes.

In Baltimore Refrigerating & Heating Co. v. Kreiner, 109 Md. 361, 370, 371 , 71 A. 1066 , a witness who had been in charge of the cold storage department of a company for eight years, and who had been in the cold storage business for twenty years, and who had inspected a number of cold storage plants was held qualified to testify as an expert as to the proper and usual construction of iceboxes. In Pennsylvania R. Co. v. Orem Fruit & Produce Co., 111 Md. 356, 362 , 73 A. 571 , a witness experienced in shipping fruit was allowed to testify as to the time ice would melt in a car at certain temperatures. In American Towing & Lightering Co. v. Baker-Whiteley Coal