Gibbons v. German Insurance & Savings Institution

Gaby, J. The only question in this case is, whether damage to the furniture and library of the appellant, caúsed by steam escaping from a break in the pipes of the apparatus by which his rooms were heated, thereby producing such a degree of heat in his rooms that the furniture and books therein were charred, is a damage by fire, covered by an ordinary fire insurance policy issued by the appellees. There is no case found where that question arose. Where there is actually a fire by which adjoining premises are being consumed, and the policy makes it the duty of the assured, in case of exposure to damage by fire, to use all .possible diligence in saving the property insured, it is held in Case v. Hartford F. I. Co., 13 Ill. 676, that damage to the insured property, incurred in hona fide efforts to comply with the terms of the policy, is covered by the policy. But there is no resemblance between that case and this. In principle this case is the same as Austin v. Drew, 4 Camp. 360, where, by the omission to open a register in an upper story of a seven or eight story building, smoke and heat came into lower stories and caused damage. Gibbs, C. J., said: “ There was no fire .except in the stove and the flue— as there ought to have been—and the loss was occasioned by the confinement of the heat. Had the fire been brought out of the flue, and anything had been burnt, the company would have been liable. But can this be said where the fire never was at all excessive, and was always confined within its proper limits? This is not a fire within the meaning of the policy, nor a loss which the company undertakes to insure against. They may as well be sued for the damage done to drawing room furniture by a smoky chimney.” The damage there, was the consequence of negligently omitting to open a proper outlet for the escape of the heat; here, by the accidental opening of an improper one. In each case there was excessive heat, but no fire where it ought not to have been. Fire and heat are not one, but cause and effect: and damage by heat is not insured against in terms, and is covered by the policy only where the misplaced fire causes it. If the fire were a moral agent, no blame could be imputed to it. It was doing its duty and no more. The damage was caused by another agent who, undertaking to transmit the beneficial influence of the fire, broke down in the task. So, in Millaudon v. N. O. Ins. Co., 4 La. Ann. 15, a loss by explosion of a steam boiler is held not to be a loss by fire, though without fire there could have been no steam; while in Waters v. Merchants’ Ins. Co., 11 Pet. 213, an explosion of gunpowder is held to be a loss by fire, but there the thing exploding was afire. Tlie common understanding of the word fire would never include heat, short of the degree of ignition, however produced. Judgment affirmed.