Coryell v. Old Colony Insurance

Goss, C. J. . This was an action to recover on fire insurance policies. A jury was waived and the case was tried to the court. Judgment was entered in favor of the defendants. Plaintiff appealed. In his petition plaintiff alleged that he was the owner of the dwelling-house in question; that he insured it by the policies set out; that he performed all the terms and conditions to be performed on his part; that while the insurance was in effect he “suffered a loss by fire, said property having been burned and smoked to the plaintiff’s damage in the sum of $1,000;” and that upon notice of loss the defendants waived proof of loss, denied liability and advised plaintiff to bring suit. The defendants demurred to the petition in the first paragraph of the answer; and in the second and last paragraph thereof, without waiving the demurrer, the defendants admit their corporate existence, admit their -right to do business in Nebraska, admit the issuance of the policies, and deny each and every other allegation contained in the petition. On the trial the parties stipulated in writing some facts definitely, and then' stipulated that if plaintiff were called as a witness he would testify to certain things fully set out, and that these things should be given the same force and effect as if he were sworn and testified. The written stipulation was- received in evidence without objection. Among these things so stipulated to be considered as testified to by the plaintiff it appeared: That the house was heated by a furnace installed for that purpose and having an oil burner, controlled by a thermostat set at 73 degrees and not changed at any time under consideration; that about midnight on April 14, 1926, plaintiff went to his furnace in the basement, inspected it and found it was working properly and made no adjustment of it; that he — 305 — awakened about 5 o’clock in the morning of April 15, observed smoke, soot and oil therefrom over the house, went to the furnace to ascertain the cause and “found that the furnace door, which he had left closed upon retiring about midnight, had been opened by some process in the absence of plaintiff, the cause of said door being open being unknown to plaintiff;” that the flames from the oil burner were shooting out of the open door from three to five feet, striking the asbestos covered heat pipes near the ceiling of said basement room, “blackening and charring the covering on the heat pipes;” that with an iron bar plaintiff shut the furnace door; that the plaintiff then turned off the oil and the fire subsided; that the soot, smoke and oil therefrom which had accumulated over the rooms of the house required redecoration of the house and time and labor; that the damage was in the sum of $1,000; and that the flames “did not ignite or burn any other part of the house than the asbestos covering on the pipes” aforesaid. ■ Plaintiff was present at the trial and' testified supplementing his testimony given in the stipulation. On direct examination he testified that the furnace door was closed when he retired between midnight and 1 o’clock. On cross-examination he testified that he always opened the furnace door at night to inspect the furnace and that he did so on this occasion. The door fastened by a “lip on the edge of the door that traveled up an inclined plane and dropped in a slot.” He thinks the lip was in the slot when he left it that night. On further cross-examination he answered in the affirmative a question framed to show that he had no independent recollection of closing the door, only because he always did so and thinks he did it that night. He gave his theory that the door was opened by some force from the inside. His judgment was that the volume of flame was greater when he shut the door in the morning than at night, greater than when it was burning around the ignition plate. On redirect examination he testified that he was very sure he closed the door at — 306 — night. There was no expert testimony nor any evidence based on experience or observation to indicate that such a furnace door might be opened accidentally from the inside or by any force operating from the inside. On cross-examination plaintiff admitted that nothing was burned in the furnace room, stating that it was fireproof. The defendants claim (1) that the damage was caused by the plaintiff’s own negligence in leaving the door open; and (2) that the fire was a “friendly” fire and not a “hostile” fire. The general rules of pleading relating to contracts apply to actions on insurance contracts. It was incumbent on plaintiff to allege that he performed all the terms and conditions precedent on his part. 26 C. J. 492, sec. 693. This he did. “The general requirement as to averring performance of conditions and warranties relates only to affirmative warranties and conditions precedent; it is not necessary to negative the occurrence of facts which would constitute a breach of a promissory warranty or condition subsequent.” 26 C. J. 493, sec. 693; 14 R. C. L. 1431, sec. 591. “He need not as. a rule, anticipate affirmative defenses either by positive or by negative allegations.” 26 C. J. 496, sec. 701. No negligence of plaintiff, either by reason of leaving the furnace door open or otherwise, was pleaded by the defendants in their general denial. The judgment of the trial court is general. It contains no specific findings of fact, nor does the bill of exceptions show any opinion or statement from the court as to the ground on which he rendered judgment. In view of the pleadings and the rules ordinarily governing them and of the general trend of the evidence in the case, we infer that the judgment was based upon a conclusion of the trial court that, under the law and the evidence, the defendants were free from liability because the fire had its origin in the furnace and because this particular situs and this particular fire constituted the source from which the damaging elements emanated. However, in stating that negligence was not — 307 — pleaded as a defense, we do not wish to be understood as eliminating the proper force of the evidential facts relating to the furnace door being open when the damage was done, and that this was the means by which the fire, smoke, and other elements complained of, reached the interior of plaintiff’s house, instead of going up the chimney. In policies insuring against “direct loss or damage by fire,” as was the case here, an actionable fire is frequently called a “hostile fire” to distinguish it from a nonactionable fire, which is called a “friendly fire,” that is, a fire intentionally built within a stove or furnace or in some other proper place contemplated by both the insured and insurer. The general rule seems to toe that the insurer is not liable for the consequences of a friendly fire so long as the fire itself is confined within the limits of the proper agencies employed for the purpose; and if a friendly fire get out of bounds so as to ignite property insured and thus to damage it, or so as to cause a second fire with consequent damage by reason of such secondary fire, it will be considered a hostile fire, for whose damages the insurer is liable. 26 C. J. 340, secs. 429, 430; 14 R. C. L. 1216, sec. 396; 6 Cooley’s Briefs on Insurance, 4933-4935. In Way v. Abington Mutual Fire Ins. Co., 166 Mass. 67, where the damage was caused by the soot in a chimney becoming ignited, it was called a hostile fire. In the opinion the court cited the English case of Austin v. Drew, 4 Camp. (Eng.) 360, often cited as a leading example of a fire held to be friendly. Sugar was damaged by excessive heat, but the fire causing this heat remained in the place provided for it. This latter case is very thorou'ghly analyzed and discussed toy that eminent jurist Caleb Cushing. We content ourselves, as to Austin v. Drew, with a reference to Judge Cushing’s opinion in Scripture v. Lowell Mutual Fire Ins. Co., 10 Cush. (Mass.) 356. This later case has been cited to us. We do not find it very analogous to the case at bar. A boy took a cask of gunpowder to the attic of the insured house and fired the gunpowder with a match. It caused damage both by explosion and by combustion. — 308 — On the theory that the ignition of the gunpowder was the proximate cause of both the combustion and the explosion, the court held that the damages for both were covered by the insured. This ignition patently was hostile. Cannon v. Phœnix Ins. Co., 110 Ga. 563, was a case arising when the insured was “arranging a stove” on the ground floor, the pipes of which extended through the ceiling and through the second story of the building. These pipes disengaged at the ceiling of the second floor. When a fire was built in the stove, smoke and soot escaped in the second story and damaged goods there. It was held that it was a friendly fire and that damages caused by water used in cooling a portion of the ceiling heated by the pipe but not actually ignited could not be recovered under the policy covering “all direct loss or damage by fire.” In Lavitt v. Hartford County Mutual Fire Ins. Co., 105 Conn. 729, damage was done to an insured house and contents by reason of a defect or of defective action of an oil burning furnace. As in the instant case, as soon as it was discovered and the oil was turned off, the fire ceased. The court was bound by the finding of the trial court that there was no actual ignition of a board attached to a ceiling in the cellar because the board about which the oral testimony was conflicting had not been preserved for review. The plaintiff had testified that this board was aflame when he entered the cellar. The court held that “fire” as used in the policy “was not restricted to its technical or scientific meaning, but was intended in the sense of ignition, including its action in charring, scorching, cracking, smoking, or heating, though no flame be seen.” By reason of the state of the record, the fire was held to be a friendly fire and plaintiff’s claim of error was denied. In Hansen v. LeMars Mutual Ins. Ass’n, 193 Ia. 1, plaintiff lit the oil burners under a boiler of water to heat it for the family washing and went back to bed. An hour later he was awakened by the smoke and soot which filled the house. He averred that the flames extended nearly to the top of the boiler and emitted in great quantities the smoke — 309 — and soot complained of. He turned down the burner and the fire went out. There was no evidence that there was, any leak or that the oil in the tank had ignited. Held, that plaintiff could not recover. The plaintiff relies on O’Connor v. Queen Ins. Co., 140 Wis. 388. Plaintiff’s servant built in the furnace a fire of material highly inflammable and not intended to be used. It caused intense heat and great volumes of smoke and soot, to escape through the registers to the rooms and thus damaged the property insured. While the syllabus states there-was no ignition outside the furnace, the opinion says that “around the mop boards was burned and the mop boards blistered; the wall paper charred and burned and the chimney cracked from the excessive heatand “the fire was extraordinary and unusual, unsuitable for the purpose intended, and in a measure uncontrollable, besides being inherently dangerous because of the unsuitable material used.” It was held to be a hostile fire. Judge Marshall filed a dissenting opinion, reviewing many cases and expressing the opinion that the majority opinion had gone “beyond any substantial support in the books.” The majority of the Wisconsin court felt justified in the opinion, probably because of the “extraordinary and unusual” development of what otherwise might even by them have been found to be a friendly fire. The opinion seems out of step with the general trend. It was not followed in Hansen v. LeMars Mutual Ins. Ass’n, 193 Ia. 1, but the opinion there contents itself by quoting the Wisconsin court’s description of the “extraordinary and unusual,” “in a measure uncontrollable, besides being inherently dangerous,” fire. In 6 Cooley’s Briefs on Insurance, 4933, in discussing the rule that damage, without ignition, resulting from a friendly fire, is not covered by the ordinary policy, the author refers to the O’Connor case alone as an example where “the rule above stated is materially qualified” and expressly refers to the dissenting opinion of Judge Marshall therein. Appellant cites City of New York Ins. Co. v. Gugenheim, — 310 — 7 S. W. (2d) 588, decided by court of appeals of Texas, July 14, 1928. The facts recited in that case show that the oil which was used as fuel in the furnace escaped into the air jacket or compartment outside of the combustion chamber, and was there ignited when the fire in the furnace proper became hot enough to heat the air sufficiently in the air compartment. “The smoke and soot from the oil burning in the air compartment went through the air vents into the house and damaged the furniture, fixtures and walls to the amount agreed upon.” The opinion cites and discusses numerous cases illustrative of the distinction between a friendly and a hostile fire and follows what it seems to consider the proper rule, that this secondary fire was a hostile fire. Appellant also cites and relies on Pappadakis v. Netherlands Fire & Life Ins. Co., 137 Wash. 430, “where fire escaped from a crack in the top of a bakery oven, until the flame heated an automatic sprinkler head, releasing and throwing a large quantity of water over the bakery and damaging the bakery and stock therein.” The court held that the fire was a hostile fire on the expressed conclusion that it was “a fire out of place.” Of course, the fact that the fire escaped from an accidental crack in the top of the oven would seem to differentiate the facts to that extent from an escape of fire from an open furnace door, as in the instant case. The opinion discusses Cabbell v. Milwaukee Mechanics Ins. Co., 218 Mo. App. 31, also cited iby appellant, and describes it as a case where a furnace in a basement of a dwelling exploded and threw out upon the basement floor live chunks of coal, and it was there held that the live coals, thus thrown out from the furnace, would constitute actual ignition outside of the furnace so as to come within the terms of the rule stated. We have read the Cabbell opinion and are unable to say whether the policy was like that in suit here or not, but there is an intimation in the syllabus that it was a broader policy. The syllabus contains this: “Where a policy, by its express terms, insured owner against loss — 311 — or damage to his buildings by fire, it was broad enough to include all fires, and to cover the damage arising from smoke and soot resulting from the explosion of a hot water plant.” To the extent, if any, that the cases cited and heretofore discussed have not been distinguished or are not distinguishable, we do not regard them as of authority to modify what we conceive to be the settled rule applicable to the case under review. We are of the opinion that the correct rule to be applied to the particular situation is this: Where a policy of insurance covers “direct loss or damage by fire” and the loss and damage for which recovery is sought was occasioned by soot, smoke and volatilized oil accompanying them and escaping from the open door of an oil burning furnace at all times operated and controlled by the insured alone; where the flames from the. furnace extended outside the open door thereof but did not ignite or burn any of the property insured and were extinguished as soon as the door was closed and the oil turned off; and where it is not shown that the furnace door was opened accidentally, by an explosion or otherwise ; it should be held that the loss and damage was not contemplated by the contract of insurance and the insured cannot recover. Moreover, in this case a jury was waived and the matter was tried to the court. No specific findings of fact were requested or made but the court found generally for the defendants. The inference is that he found, as we have found, the issue of fact as to the unexplained open door in favor of the defendants. This finding has the same force and effect as if found by a jury. We may not overturn it even if we might have found differently, unless it was clearly against the preponderance of the evidence. For the reasons stated in the opinion, the judgment of the district court is Affirmed. The following opinion on motion for rehearing was filed February 28, 1930.