Plaintiff herein has recovered Judgment in the sum of $368.90 against defendant, Amerioan Automobile Insuranoe Company, unddt a fire clause in a oertain policy issued by the Company in plaintiff's favor, under date of May 13, 1920.
¡The petition alleges that on May 17, 1920, three days after the date of said polioy, plaintiff's automobile was damaged by fire, with the result that the blocks, pistons and rings, bushings and bearings were burned and completely ruined, the replacement of which cost the amount sued upon; that from no fault of p. titioner but purely from accidental causes, the damage was sustained; that notwithstanding amicable demand, defendant has refused to meet or recognize its liability under the policy, and therefore there should be Judgment for not only the amount of damages, but for twelve per cent additional damages upon the amount sued for, and also for reasonable attorney's fees.
Defendant admits the issuance of the policy and its existence at the date of the alleged fire, but denies that the damages if any, were due to any fii;e loss or other cause for which it could be liable under the terms of the polioy, and particularly denies that it is liable for damages or attorney's fees under Aot 168 of 1908.
¡There was Judgment rendered in the trial court only for the amount of actual damages to the automobile. Plaintiff has answered the appeal, to this oourt, and prays for all damages olaimed in the petition.
We find from the evidence that plaintiff's wife was driving the car on the morning of May 17, 1920, and that for some reason not shown by her testimony,pr that' of other witnesses, the maohine was not working satisfactorily. Por this reason she returned with the oar to plaintiff's garage, and not being able to again start the engine, she called to the colored mechanic then in or around the garage,
*4333he testifies that as soon as this man started to crank the oar, there was a dreadful oombustlon. sounding like the oar was going to pieces, and that when she saw flames coming from the "breather" she shouted to the mechanic, who told her to "shut the motor off guiok," which she did, and that thereafter they-were unable to re-start the car or to get the engine to turn over at all. Both of these witnesses testify that at the moment of the accident the hood of the car was raised. This fact convinces us that the fire, or what the mechanic terms as "a little flame coming out of the breather," was not confined or shut in against the mechanism of the car.
Plaintiff's, wife and the mechanic were the sole witnesses to the accident, and both agree that the combustion, if any, was but momentary, and explosive in its nature. Their evidence is corroborative that there was no visual evidence of a fire from the outward appearance of the-engine, radiator, or other parts, but that after the accident, when the crank case and blocks were removed or opened, the piston rods, rings, bushings and bearings, were found to be burned. They each agree when asked to describe the eatent or nature of damage to these parts, that they were all burned because they were covered with a black or brown soot, but that none of these parts were in any way melted. Mrs. Hoohstein says: "They had a sort of varped swelling," but the mechanic denies that they were warped, but only sticky, and full of soot. This man further testifies that he had been attending to the ear for about three years, and that about two months before the fire he had overhauled the car and put it in good condition, especially in respect to the several parts which he testified were damaged by the fire. He undertakes to say that as a result from the fire, these parts were worn below the normal standard (or size) of what they should have been, and did not fit anywhere, having about an eighth of an inch ¿.-lay in them after being burned. However, Just before giving- this *434kind of testimony, and after swearing that none of the parts were warped, he undertakes the additional statement that tire pistons were so tight in the blocks that he had to use all of his force to remove them . When cross-examined about the v/orn condition of these parts, he admitted that they could have beeh so by wear and tear, though he insisted that they were burned.
Mr. ff.D, pique v/as another witness for the plaintiff, the chief mechanic for the Cadillac Asrency in this City, the injured car being a Cadillac. This witness testified that at the request of plaintiff'«s wife he examined the car after the explosion, but only saw the blocks and pistons, which seemed scarred and burned beyond usage, which to him was evidence of burning, though he did not see the "blaae" himself, but had only heard of one through Mrs. Hochstein. On cross-examination, he testified in part, as follows:
Mr. X i que , in what sense do you use the word "burned'1?
A. Burned — it is pretty hard to say what sense you use it in, because it could be burned from fire, but other objections were made here and it is useless to ask me that.
Q. 7/ell, just tell me in what sense the word burned can be understood.
A. A car, 10 bo'burned beyond usage, as that car had been burned, had to happen at the minuto; in a fev;-probably about twenty strokes. There could have been a flare in the cranked car and burned, from the condi tions ,--because it could not have been run very long in that condition; a block scarred will not heat, and those blocks were scarred.
Q. The word burned is used in a dual sense; one burned from fire, and one burned from friction?
A. Yes, sir, it is.
Q. This evidence of burning, which you saw, was evidence of burning in vhat sense, from fire or from friction?
*435A. Well now, if the ease was put to me, as it was, to take a look at the blocks and say how they were burned, it wouia be impossible. There is no mechanic or engineer in this city or in the united states who could ever tell you, unless.they saw the flames, or what it originated from.
Q. How, what happens when you apply heat of high intensity to metal such as is used in the construction of those portions of an automobile?
A. A fire could not melt anything except — on an inside of a motor like that, couldn't melt anything, with the exception of the babbit inside of the bearing on the crankshaft.
Q. Why?
A. It is not that intense.
<¡, What is the first change which would occur as the result of the application of heat to metal such as cast iron or steel, what change would it undergo?
A. It would show signs of burning, the same as practically any fire of that kind would.
Q. It would not consume the metal, as wood would be consumed?
A. Ho, sir, ueoause it is not intense enough.
Q. If it vías sufficiently intense what would occur, would the metal actually be consumed, such as a piece of wood would be, or would the shape of the metal be altered because of the fact that the metal had begun to run? Would the metal be consumed, or would it run, granting there was sufficient heat?
A. If it was intense enough anything will run, no matter how great it is? If you get enough heat in it, but you can't get it inside of the motor.
Q. In this particular instance there was not a heat of sufficient intensity to cause the running of the metal?
A. Ho.
Q. How, as I understand your testimony, there was nothing in the appearance of these alleged damaged parts which would enable any engineer on earth to state from that whether or not that damage resulted frim fire or from friction; is that it?
A. That is correct.’1
*436Ibis witness being reoalled by plaintiff, on rebuttal, again testified under cross-examination, as folldws:
"Q. As X understood the general purport of your testimony at the last hearing you were unable to state with absolute certainty whether or not this damage was caused by an actual flame or fire?
A. Absolutely. Hobody living can tell you, either?
She testimony of this witness on behalf of plaintiff has been carefully reviewed by us for the reason that he appears to be a mechanic with expert knowledge oonoerning the construction and mechanism of automobiles, especially the kind of automobile involved in this suit, and we are impressed particularly with that part or his testimony in which he honestly declares that neither himself nor any other mechanic oould advise the Court, unless having seen the explosion, or flames, what the accident originated from. He not having seen the aooident, has not undertaken to say what was its cause, but in this case there are other expert witnesses whose testimony has been offered by defendant, who have testified under oath that in their opinion the condition of the parts claimed to have been injured distinctly shows that said condition oould not have been caused by a fire, but that the parts show scarring, due to inperfect lubrication, and are in no manner "sealed" as they would have to be had they been subjected to a fire of any duration or intensity. The rebuttal of the testimony of the witness Marquis, oalled by plaintiff, is in our opinion largely hypothetical, and has not in any way assisted us, for the reason that he does not appear to have examined any of the damaged parts of the machine.
We pass now to the further consideration of the testimony given by witnesses for the defense.
It is true that none of these witnesses examined the parts until a month or two after the alleged fire, but two of them are experts, thoroughly qualified to pa33 upon the *437cause of the alleged damage, as evidenced by .the results seen at the time of their examination.
Mr. Grevenberg, the local representative of the defendant Company, but not an expert, states that he called into consultation with him Mr. Sohayer and Mr. Jurgens, the other witnesses for the defense, who are experts. From this point in the reoord, the testimony for defendant is oonfined to what the experts found upon the examination authorized by Mr. Grevenberg.
We find that the testimony of these experts is consistent on the point that if there were any flame which followed the cranking of the machine by the colored mechanic, that it oould not have been of any duration or intensity sufficient to warp or melt, or materially injure the parts to the extent alleged in this suit, and that had such intense conflagration occurred, the aluminum motor base of the engine would have melted long before the pistons or cylinder block, and before these could have even become red hot, and that such intensity of heat would have resulted in complete destruction of the motor base made of aluminum, or softer metals constituting the piston rods or other parts in the cylinder blocks.
Each of these witnesses corroborates the other's testimony to the effect that there was no evidence of damage to these parts beyond scarring, and that it was evident that the scarring was caused by improper lubrication, and that if there were any warping on the pistons, causing loss of motion, that such warping was due to age of the parts. In accounting-, on a hypothetical basis for any explosion as claimed by plaintiff, and the colored mechanic, the witness Sohayer swears that in his opinion there might have been a back fire, but that this back fire would have been spontaneous, and of the shortest duration, causing no damage, or at least, no such damage as plaintiff's evidence would indicate.
IhiB same witness says that in all of his experience, over fifteen or twenty years, that he has never seen or heard of a fire in the "breather pipe" such as was claimed here, *438unless it were attended with complete consumption of the motor itself, and that then, under such conditions, the motor would be all sealed up. He denies particularly that the blocks said to have been burned were warped, and says further that there was nothing the matter with the blocks, which could have been U8ed, because the damage was not caused by any fire on them, though he admits that the machine needed repairing. Sohayer further states that Rockett, the colored mechanic, showed him the parts stripped from the engine, and that he, Schayer, put his hand inside of the motor and around the pistons, and examined all the bearings, and that he called Rockett's attention at the time, and showed him that there was oil in all the parts, and that there was no sealing.
He further swears that scaling must follow very intense heat, and that it is easily observable, even two months after being subjected to such heat. He further states that he took tlie piston itself, and put it in the cylinder block, and that there was nothing the matter with the piston outside of its being a little worn. Witness concluded his testimony with the statement that he asked Rockett to save the old parts, and that if these parts had been brought into Court ho oould have "backed up" what he said about them.
At this point, it is to be noted that tlie witness, Rockett, when asked about the parts on first hearing of the case in the trial court, said that they viere in the garage, and that he would be glad to bring them to Court if it was all right with Mrs. Eoekstein. These parts were never offered in evidence by the plaintiff, and when Rockett was again requested to account for them on the second hearing of the case, he simply stated that he had not brought them to Court, but that they were in the garage for inspection.
*439Mr. W. M. Jurgens, an inspector for the Insurance Company, arid also in the automobile repair business for over tv.enty years, was the other expert witness offered by defendant, who corroborated in almost every detail what was stated by Mr. Schayer, stating that he found no traces of fire v/hatsoever. It is true that he also examined the parts some time aftor the alleged conflagration, and that when ho first saw the car the mechanic was overhauling it, and that he, witness, began to examine the hose and wire connections, which, as he said, is the first thing that shows evidence of a flame, and that these parts seemed to be in first class condition, outside of v.ear and tear; that the engine shoved lack of lubrication. Ee further states that the babbit in the motor is the softest material used, and that to melt same would require 700 degrees of heat; that the babbit was not melted, and that by the time fire v/ould reach the babbit bearings, it vould destroy the aluminum cranking case on the outside, he having found the aluminum cranking case in this matter in first class condition, he was asked the question tfcut if a temperature of 700 and soné odd degrees rere obtained, vould it not burn the whole car, to v i.ich he replied that the whole car, the hoed, the whole front, and the radiator* would have been totally destroyed by the timo ube aluminum cranking case shored any developments of fire.
Ite further states that lack of lubrication would have caused the condition of the ¿istons and bearings, as he found them, that is "scarred," and that the cylinders vere all scarred, and the bearings all damaged, but not by fire.
Ke further says that the minute he locked at the cast iron, or cylinder walls, he was convinced that the car had been ojjerated for many an hour with lack of lubrication,and that even if the automobile had been run for several hours before coming to the garage, that no heat could develop in the cranking *440ease, suoh heat haying to develop from the outside by tire»
He furthei states that one of the babbited oqnneoting rods< was damaged, but only from lack of luhrioation» He gives as positive, expert testimony, that if an automobile is being cranked up, and a fire is on the inside of it, and it oontinues for a minute'or two, no damage oan be done because the flame goes out, and there can be no damage to any part of the motor, the flame being confined between-the carbureter and the hood.
Shis ease is one involving questions of fact, conclusions from which by the court a qua, should be given great consideration by the Appellate Court. But we have been much impressed with the fact that the preponderance of evidence against the probability of a fire, for which defendant should be held liable, is largely in favor of the Insurance Company in' this case»
We think that the weight of expert testimony is clearly in favor of defendant, and it is a-reasonable presumption of law that the failure of the plaintiff to produce the alleged damaged parts at the trial in the lower court, especially when called for, that the presumption must be that this evidence would have been unfavorable to the plaintiff. Ror these reasons, we are of' the opinion that there should be judgment in favor of defendant
It is therefore ordered, adjudged and decreed, that the judgment herein appealed from be, and the same hereby is reversed, and it is now ordereu. that there be judgment for defendant, the American Automobile Insurance Co,, dismissing the petition of león Hoehstein, plaintiff herein, at his coot in both courts.
JUDGHEtff EEVJBHSED AS PRAIHSIM1' S C03S IH BOSH OOURSS.
June 19th, 1922*