Fernandez v. Merchants' Mutual Insurance

Howekd, J. This is an 'action upon a policy of insurance to make defendant liable for goods stolen, while being removed from a building damaged by fire. A clause in the policy expressly excludes responsibility for loss of property by theft, during or subsequent to the fire; but plaintiff, the appellant, contends that, under a legal and equitable interpretation of the terms of the policy, the defendant is made liable, by reason of its agent, the firewarden having ordered the removal of the property from the burning building. Admitting that the action is properly brought, to enforce such liability under this particular contract of insurance (upon which we are not called on to express an opinion), plaintiff has failed to show that the fire-warden undertook to remove the goods on behalf or for account of the defendant. On the contrary, it is proven that the plaintiff himself undertook the removal, at the suggestion and on the advice of the firewarden, whose duty and authority, in this respect, are aptly described by the president of the company, to wit: “To advise parties who are insured as to the removal or disposition of their property, and, in ease of their refusal, to intervene in behalf of parties concerned. ” Plaintiff did not refuse, so as to require this intervention, and his acting upon the advice of the firewarden did not change the rights and obligations of the parties to the contract. Good faith, it seems, would require both parties to do all in their power to make the loss as small as possible, and as there was express exclusion of liability for the course set forth in this action, it was incumbent on plaintiff to show, beyond reasonable doubt, that defendant did some act to incur liability for such loss. The stealing by the crowd was neither a necessary nor direct consequence of the fire, and the loss was clearly not within, the contemplation of the parties at the time of contracting, and no subsequent act of the defendant is shown to create a liability, as charged. Judgment affirmed, with costs.