Preston v. . Aetna Insurance Co.

Cullen, Ch. J. This action is brought on a fire insurance policy to recover for the damage caused to an automobile by fire. The policy contained this provision : “ It is understood and agreed that this policy does not cover loss or damage caused by fire originating within the vehicle.” On a dark night in July, 1902, the automobile insured, which was propelled by the explosion of gasolene vapor, while going from Pleasure Bay to Monmouth, 24ew Jersey, ran off the road into a ditch filled with water to the depth of a man’s-knee. At the time of the occurrence there were in the vehicle a chauffeur and three other men. The automobile lay at an angle of forty degrees with the bed of the road. Finding it impossible to extricate the machine from the ditch the three men left for assistance, and almost immediately after heard the noise of an explosion, when running to the place of the accident they found the automobile in flames and the chauffeur lying on the ground across the ditch, with his clothes torn and his arms and hands bare. The chauffeur died before the trial of this action, so the origin of the fire can be determined only from the circumstances narrated by the other persons. At the time of the accident two kerosene lamps on the dash *144 board of the vehicle were lighted. It is assumed by both parties that on account of the slanting position in which the vehicle stood the gasolene ran out of the tank, covered the surface of the water, and its vapor coming in contact with the lighted lamps took fire and caused the explosion. This theory is in harmony with the statements made in plaintiff’s proof of loss, to wit, “ said fire originating as follows: On road from Pleasure Bay to Monmouth Beach. Caused b3r extinguishing lamp.” The referee found as a fact that the loss and damage originated within the vehicle and awarded judgment to the defendant. This judgment was reversed by the Appellate Division, the order of which is silent - as to the grounds of the reversal. It is, therefore, presumed to have been on the law alone (Code of Civil Procedure, § 1338), the facts found by the referee not being disturbed provided there was any evidence to support them. Therefore, the question before this court is whether a fire occurring in the manner described falls within the exception of the policy as a “ fire originating within the vehicle.” We cannot accept the view entertained by the majority of the Appellate Division. Doubtless the general rule is, as often stated, that where an insurance policy is so drawn as to be ambiguous or require interpretation, that interpretation will be adopted which is most favorable to the insured. (Rick erson v. Hartford Fire Ins. Co., 149 N. Y. 307; Michael v. Prussian Nat. Ins. Co., 171 N. Y. 25.) But the rule is equally well settled that contracts of insurance, like other contracts, are to be construed according to the sense and meaning of the terms which the parties have used, and if they are clear and unambiguous the terms are to be taken and understood in their plain, ordinary and proper sense. (Imperial Fire Ins. Co. v. Coos Co., 151 U. S. 452; Nelson v. Traders' Ins. Co., 181 N. Y. 472.) That the lamps were part of the automobile so that the policy would have covered their loss had the fire been caused by other than the excepted risk seems reasonably clear. That the gasolene vapor must have penetrated within the lamp to have ignited is also clear. Therefore, within *145 the letter of the policy the fire in this case originated within the vehicle itself and was an excepted risk. We do not care, however, to stand on the proposition that construing the policy literally, this fire fell within the exception, but on the broader ground that by a fair interpretation of the policy it was intended to exclude risks of this character. The motive power used in the automobile, volatile and inflammable in the highest degree, was a constant source of danger by fire. Fire might happen from many circumstances, some of which it was possible to foresee, others which it was not possible to foresee. It might be caused from some defect in the electric apparatus or in the valves controlling the flow from the tank into the motor setting fire to the whole store of gasolene. If the vehicle was run at a high speed the machinery might become so heated as to cause fire and, as already suggested, the fire might be caused in many other ways which could not be anticipated. The fair and natural import of the policy was to exclude loss by fire, danger of which was inherent in the use or operation of the automobile itself without the intervention of any extrinsic cause or agency. If an incendiary, desiring to destroy the automobile, should throw a lighted match into the tank the fire would, under a literal reading of the policy and under the position assumed by the respondent’s counsel, originate “ within the vehicle,” but in our judgment such a loss would not fall within the spirit or fair interpretation of the exception, but, on the contrary, be covered by the policy. In such a case it would be the independent act of a third party that caused the fire. It is true that by reason of the presence of the gasolene an automobile would, possibly, at all times, be more inflammable and subject to greater injury by fire than other vehicles. • Such risk was, doubtless, paid for by the premium exacted and was covered by the policy. What the policy intended to except was fire developed by or originating in the use of the automobile as distinguished from fire occasioned by external causes. In other words “ within ” in this policy is used as the antithesis of “ extrinsic ” or “ without,” not as the synonym *146 of “ interior.” The question is one that does not admit of extended elaboration. We can only say that in our judgment the policy did not cover the loss in this case. The order of the Appellate Division should be reversed and the judgment entered upon the report of the referee affirmed, with costs in both courts.