Kee Kan v. Manchester Fire Assurance Co.

OPINION OF THE COURT BY PERRY, J. Assumpsit for $750 on a contract of fire insurance. Tbe buildings insured were situate on Maunakea street, between Hotel and Ring, and were destroyed in tbe conflagration of January 20, 1900. Tbe defense was that the loss was caused directly or [705] indirectly by order of a civil authority, an excepted cause, and in support of that defense evidence was introduced tending to show that the fire which destroyed the plaintiffs’ buildings spread from a fire started by order of the Board of Health of the Bepublic of Hawaii in that portion of Block 15 bounded by Kukui, Nuu'anu and Beretania streets and the easterly side of the Kaumakapili Church premises and a line in continuation thereof to Kukui street. In rebuttal the plaintiffs adduced evidence tending to show that the fire had been started by the Chief Engineer of the Fire Department, or by his order, in a building, numbered 41 on a map of the locality in evidence, without the boundaries of the section ordered burned and that from that building or from two other buildings, numbered respectively 48 and 45 and also without the boundaries referred to, the fire spread to a steeple of the Kaumakapili Church and thence from building to building until it reached the plaintiffs’ property. On motion the presiding judge directed a verdict for the plaintiffs on the ground that the loss was shown, not to have been from an excepted cause. The main question before us is as to the correctness of this instruction. The provision of the policy relied upon by the defendant is that “this company shall not be liable for loss caused directly or indirectly * * * by order of any civil authority.” On January 19, 1900, the president of the Board of Health addressed to Andrew Brown, Eire Commissioner, the following communication : “You are hereby authorized by resolution of the Board 'of Health to destroy by fire all the structures within the limits of the area described as follows:” (description substantially as above) “all of these structures inclosed in the above boundaries having been condemned by the board as infected by plague and ordered destroyed by fire”. The resolution referred to had been duly passed by the Board. The buildings within the designated area were all, or nearly all, destroyed by fire on January 20, 1900. If the fire within that area passed from building to building, unaided by any efficient, intervening cause, to the insured property, then the order of the Board of Health was the proxi [706] mate cause of tbe loss of tbe plaintiffs’ buildings. Hawaii Land Co. v. Ins. Co., 13 Haw. 164. Wbetber tbe evidence at tbe trial was sucb as not to permit of a finding that tbe fire did so spread from that area, it is unnecessary to say. Tbe evidence did permit of and would bave amply supported a finding tbat while tbe chief engineer started tbe fire in No. 47 and also set fire to Nos. 48 and 45 before setting fire to any of tbe buildings within tbe area, be did so for the purpose of creating a gap between tbat area and tbe rest of the town lying to tbe west and thus protecting tbe rest of tbe town from tbe fire which be bad been ordered to start and which be knew be would start immediately after-wards. The chief engineer is dead 'and was unable to testify himself as to tbe reasons which led him to start tbe fire where be did, but tbe evidence as to tbe careful disposition made by him beforehand of tbe engines and other apparatus of tbe department and other evidence in tbe case would clearly support tbe finding tbat bis sole purpose was- to carry out tbe order of tbe Board of Health with as little loss and danger as possible to tbe portions of tbe town not ordered destroyed. If tbe chief engineer set fire to Nos. 47, 48 and 45, not in tbe execution of tbe order received, but to gratify ill will or hatred on bis part .against the owners oí those buildings, then tbe fire .so set or bis act was an efficient intervening cause breaking tbe chain of connection between tbe order and tbe loss and tbe order would not be regarded in law as tbe cause of tbe loss. But, in our opinion, tbe authority to burn tbe designated area (tbat tbe Board of Health bad color of authority to destroy condemned buildings by fire sufficient to constitute it a civil authority within the meaning of the policy, see Haw. Land Co. v. Ins. Co., supra) carried with it to tbe same extent tbe authority to do all acts reasonably necessary to execute tbe order or request and at tbe samé time to protect to tbe greatest possible degree from a spread of tbe fire tbe remainder of tbe town; and if tbe burning of Nos. 47, 48 and 45 was reasonably necessary for those purposes or was reasonably supposed by tbe chief engineer, in good faith, to be necessary, tbe order of tbe Board of Health was [707] the direct and proximate cause of the burning of those three buildings and, by means of the chain thus established, the direct and proximate cause of the loss of the plaintiffs’ building. That the engineer committed, if he did, an error of judgment as to the necessity for the preliminary burning, cannot break the chain of causation so far as this case is concerned, whatever the rule might be in an action by the owners against the engineer. Such error of judgment could not of itself constitute an efficient intervening cause or render the act of the engineer such. Hatch & Ballou for plaintiffs. Robertson & Wilder for defendants. The mere fact that the fire was started without the boundaries described could not of itself render the act of the person setting it an efficient, intervening cause. Eor example, if a small pile of wood had been made just without the line and against one of the buildings within the area and set on fire for the purpose of thus communicating the fire to the buildings within and from the heap of wood the, fire had spread to the plaintiffs’ buildings, could it be successfully denied that the order of the Board was the proximate cause of the loss ? We think not. So also if in the place of buildings 47, 48 and 45 three heaps of tree trimmings or other rubbish had stood, and these had been deemed a menace, if allowed to remain, as a means of spreading the fire about to be started to the portion of the city to the west and had been for that reason burned, and the fire had spread therefrom to plaintiffs’ buildings, would not the order of the Board be the proximate cause of the loss ? We think it would. What the result would be if numbers 47, 48 and 45 were burned by mistake, on the supposition that they were within the designated area it is unnecessary to say at this time. In accordance with the foregoing views the evidence permitted of a verdict for the defendant and for that reason the direction to find for the plaintiffs was erroneous. The other exceptions need not be considered. The verdict is set aside and a new trial ordered.