Babcock v. Montgomery County Mutual Insurance

Hurlbut, J. By the policy set forth in the declaration the defendants became “ liable for fire by lightning,” and the dwelling house of the plaintiff which was the subject of insurance, “ was rent and torn to pieces by lightning, without being burnt or consumed;” and the question is, whether this was a loss within the meaning of the policy % The proposition of the plaintiff is, that in the ordinary acceptation of language, lightning is fire, and hence that destruction by lightning in any manner, is necessarily a destruction by fire; *332 or, if not, that in effect, the language of this policy imported an insurance against lightning. In support of the first branch of this proposition, reference was made on the argument as [332] well to passages in ancient scripture, as to the writings of modern philosophers. In the first book of Kings, (ch. 18, v. 38,) “ the fire of the Lord” is mentioned as a destructive agent; and at an early stage in the afflictions of Job he received intelligence that “The fire of God is fallen from heaven and hath burned up the sheep and the servants and consumed them.” (Job, ch. 1, v. 16.) If the fire thus spoken of were atmospheric electricity, which there may be some reason to doubt, still, according to the same book, the voice which answered Job out of the whirlwind, designated it as “ the lightning of thunder;” and as if in derision of all human effort to understand or control its action, inquired, “ Canst thou send lightnings that they may go, and say unto thee, here we are?” (Job, ch. 38, v. 25, 35.) A conjecture as to the identity of fire and lightning appeal's to have been indulged in by the ancients. Seneca maintained it as probable, and stated that the Stoics believed that air was converted into fire and water during a thunder storm. The Epicureans are represented to have taught that lightning consisted of fire alone, which was derived from the sun. In figurative speech and poetry, lightning is designated by a variety of terms. Milton, in Paradise Lost, (book 10,) speaks of the collision of two bodies grinding “ the air attrite to fire.” as late the clouds Justling, or pushed with winds, rude in their shock Tine the slant lightning, whose thwart flame driven down Kindles the gummy bark of fir or pine.” Spenser alludes to a person dying, “ as one with lightningyirecZ/” while Pope, in referring to death caused by lightning, does not suggest the idea of fire, but describes the fatal influence as the “ touch ethereal,” which seems to he a poetic term for one of the mechanical effects of electricity. Byron, in the third canto of Ohilde Harold’s Pilgrimage has this expression— *333 “ Prom peak to peak the rattling crags among Leaps the live thunder. And again— as a tree On fire by lightning: with ethereal flame Kindled he was and blasted ” From these references, however, we derive hut little aid m ascertaining either the popular acceptation or the true [333] meaning of the term lightning. If we turn to the books of the learned relating to electricity and caloric or heat, we shall encounter much doubt and contradiction. Descartes has said that “ there is nothing in the whole range of philosophy which does not admit of two opposite opinions and in the present state of science, electricity and caloric can not be regarded as exceptions to this remark. The former is spoken of as an “ invisible agency in the natural world, dependent on an extremely subtle species of matter, either of a compound or elementary character, every where present, and operating according to certain laws, some of which are known, while others remain to be determined.” (Harris on some Elementary Laws of Electricity ; Transactions of the Royal Soc. London, 1834.) But this is no sooner affirmed by one learned writer, than this omnipresent and invisible agent is declared by another scientific gentleman not to be electricity, but caloric, “ the first of second causes,” of which electricity is only a modification. Dr. Lardner (1 Lectures on Science and Art, 539, 540,) presents a table containing numerous instances of the of “ ball lightning,” as collected by M. Arago, in which scribed as “balls of fire” and “ globes of fire.” IF L,j/ «7 en ny a AT have it from very high authority, that although eletn^'A-™0-^' J charges have occasionally been described in that form! they are entirely incompatible with all that is known' tricity and its modes of discharge; and that although nomena of balls of fire may appear in the atmosphere, it is denied that they have any thing to do with the discharge-of ordinary electricity, or that they are at all related to lightning. (Faraday's Experimental Researches in Electricity, § 1641.) *334 Dr. Franklin at one time considered that the fusion of metals by the electric fluid was a “ cold fusion but it is now believed that the influence in question results from the operation of the fluid in raising the temperature of metals, as it appears that heat is evolved by common electricity when passed through wires or other substances. And the current of scientific opinion is at present in favor of the notion that heat .and electricity [334] are distinct, from each other, although distinguished names may be cited to the contrary. (Faraday ut sup. §§ 287, 1625; 2 Lardner's Lectures, 66; 10 Edin. Ency. 295; Metcalf on Caloric,passim.) Beccaria, according to Priestley, reckoned hail, rain and snow,among the effects of a moderate electricity; and held that water spouts, tornadoes and earthquakes have an electric origin. But Dr. Metcalf maintains not only that caloric is the cause of these, but is the main force operating to produce the mechanical, chemical and vital transformations throughout the universe. (1 Metcalf on Caloric, London ed. 1843, p. 20, 22, 44.) This learned and ingenious writer' insists that caloric is not the offspring of electricity, but that the latter is a modification of the igneous principle. That caloric is omnipresent,, whilst its offspring in the form of electric fluid is.only occasional ; that without caloric there could be no electricity; that by the attraction of caloric for ponderable matter,, it unites and holds together all things, and by its self-repulsive agency it separates and expands all things—asserting with Bacon that “ heajt and cold are nature’s two hands.” In reference to electric discharges in the atmosphere, he maintains, that upon the condensation of aqueous vapor, its caloric is given out in the concentrated form of lightning; :and he thinks it probable that the luminosity of the spark is owing to .a sudden combustion of air or vapor by so intense a heat. (1 Metcalf on Caloric, 204,176, 282, 298, 301, 337.) He conceives that the mechanical force of electricity demonstrates that it is a material agent—and that when greatly concentrated it produces the phenomena ascribed to caloric—and if it combine with metals or other bodies producing their liquidity, &c. it communicates no shock, its pe *335 culiar properties being merged into those of ordinary calorie. (Id. p. 313, 318, 287.) It is however conceded by this writer, “ that almost every thing connected with the origin and laws of electricity is either debatable or unintelligible; some maintaining that it is a subtle and inconceivable refined species of matter diffused throughout nature; others, that it is a compound of two fluids, each of which repels its own particles and is attracted by the other; while a third party maintains that it is neither, but a [335] mere effect or property of ponderable matter.” If the learned in natural science are thus in doubt, how can the court pronounce upon the nature of electricity ? It is fortunate that the law has wisely relieved us from such a burthen. “ It were infinite,” says Bacon, “ for the law to consider the causes of causes, and their impulsions one of another; therefore it contenteth itself with the immediate cause, and judgeth of acts by that, without looking to any further degree.” (Bac. Max. reg, 1; Broom's Max. 105.) But while we are neither able nor required to determine what electricity is, some of its effects are well understood and agreed to by men of science, and are apparent to ordinary observers. Among its prominent and well shown effects, is its mechanical agency in rending solid matter, which is an imperfect conductor, in impelling and dispersing light bodies: in perforating, expanding, compressing, tearing and breaking to pieces, &e. (Edinb. Enc. tit. Electricity.) It has not been ascertained how this influence is exerted, although it has been sometimes referred to the expansion of the water or other fluid, contained in the pores of the body which the electric fluid penetrates. But however that may be, it is clear that it may produce the effects mentioned without actually setting fire to the object acted upon. The action of electricity in the evolution of light and heat, in inflaming combustible bodies, in fusing metals, &c. is reckoned among its well known chemical effects. And it appears to have been ascertained that “ the chemical power of a current of electricity, is in direct proportion to the absolute quan *336 tity of electricity which passes.” (8 Ed. Ency. 322; Faraday's Exp. Res. in Electricity, § 783.) Treating electricity as an agent which is capable of producing destructive effects, it is mainly, if not altogether in reference to its well known modes of mechanical and chemical action, that danger is to be apprehended to property; and it is therefore, only as against these, that insurance would naturally be required. ¡No doubt it would be proper for the owner of property to ask for indemnity against all the effects of light-[336] ning, 'as it would clearly be competent for the insurer to limit the policy to certain specified effects. In case of a general insurance against lightning, as the risk would be increased beyond what it would be in case it were limited to only one known effect of it, it is to be presumed that the rate of premium would be proportionately enhanced; and whether the insurance be general or limited, or what is its character and effect, must in all cases be gathered from the language of the policy. In the case in hand, the parties, who are presumed to have had an ordinary acquaintance with the known effects of lightning upon a building, and knowing that it might either rend, shatter, and prostrate it, or ignite and cause it to be consumed, entered into the contract of insurance, which is the foundation of this controversy. They employed ordinary words, and not scientific terms, to express their meaning; and the policy must be understood in the plain, ordinary and popular sense of the words used in it. (2 Arch. N. P. 272.) Taking the language of the policy in this sense, the defendants did not undertake to indemnify the plaintiff against lightning, nor the effects of lightning. Such an undertaking might have charged them with the loss alledged to have been incurred. But they became liable for one only of the known effects of lightning, to wit, for fire produced by that means ; having treated the lightning as a cause, and fire resulting from it, as an effect, and the only effect to be insured against. According to Webster, “ lightning” is defined to be “ a sudden discharge of electricity from a cloud to the earth, &c. producing a vivid flash of light,” &'c. He does not speak of *337 “ fire” in connection with it; while he defines the latter to be “ heat and light emanating visibly, perceptibly, and simultaneously, from any body; or in popular acceptation, the effect of combustion.” Here we have the sense in which it must be intended that the parties employed these terras in their contract; and it seems to me that the learned judge who delivered the opinion of the supreme court, was entirely correct, in saying that the terms of the policy exclude the idea that it was intended to cover damage by lightning, when there was no ignition. The insurance was against fire, and the clause [337] in reference to lightning seems to have been introduced to avoid any doubt which might arise as to the liability of the insurers for fire originating from that peculiar source. But however that may be, the declaration should have averred a loss by fire, i. e. from actual ignition and burning; whereas the averments of the plaintiff as modified by the stipulation between the attornies, present a case of mechanical destruction purely, and expressly negative the idea of burning or consumption by fire, in the common acceptation of the term. The very obvious remark of Ch. J. Gibson, in 3 Barr Penn. Rep. 47, is applicable here : that “ when the peril insured against is fire, the instrument of destruction must be fire.” An old writer, ( Weskett on Ins. 212,213,) speaks of insurances against fire as securing the insured from the “ flames,” and of the risk of the insurer being diminished where “ there is a plenty of water, and dispositions have been made for the extinguishment of fires.” But these would have very little influence in arresting the mechanical effects of lightning. Emerigon on Insurances, (translated by Meredith,) ch. 12, § 17, speaks of the liability of insurers for “ accident by fire,” when “ caused by lightning.” In 1 Philips on Ins. 631,2, it is said in reference to maritime insurers, that they “ are liable for loss when the property is consumed by lightning,” &c. In Smith's Mercantile Law, 340, it is said to be immaterial how the fire was occasioned, whether by lightning or any other cause. In 1 Camp. R. 123, Lord Ellenborough said, “ if the ship is destroyed by fire, it is of no consequence whether it was occasioned by a *338 cannon, accident, or by lightning,” &c. “ Loss by fire, when caused by lightning, is held to be a charge upon the underwriters, under the word fire,’ in our common form of policy.” (2 Arnould, on Marine Ins. 806.) These authorities which were referred to by the learned counsel for the defendants, show the legal acceptation of the term “ fire,” in connection with “ lightning,” and it is but a reiteration of its popular meaning. It is the effect of combustion, caused by lightning. The latter is not treated as “ fire,” but as an agent that may produce fire, which is the immediate and only recognized cause of loss. Electricity, caloric, or heat, may so act, without producing fire, as to cause great injuries to property; but these are not embraced by an insurance against fire alone. (Austin v. Drew, 4 Camp. N. P. R. 360; 6 Taunt R. 437.) On the whole, I think it clear that the plaintiff has not averred a loss within the meaning of the policy; and that the judgment of the supreme court, with the very clear and satisfactory reasons assigned in its favor by Mr. Justice Pratt, should receive the concurrence of this court. Judgment affirmed.