O'Connor v. Queen Insurance Co. of America

The following opinion was filed October 26, 1909: Keewot, J. The policy in this case, being the Wisconsin -standard form, insured the plaintiff “against all direct loss and damage by fire;” and the controversy is as to whether the loss and damage was caused by anything insured against by the defendant company. The question arises whether the fire ‘which caused the damage was a fire within the meaning ■of the policy. The plaintiff lived in a rented house heated by a furnace. His servant built a fire in the furnace of material not for use therein or intended so to be used, and of such a highly inflammable character as to cause intense heat and great volumes of smoke to escape through the registers leading into the rooms and greatly damage plaintiff’s prop•erty. The heat was so intense as to char and injure furniture, and the great volumes of smoke and soot greatly injured the furnishings and personal property of the plaintiff. It does not appear from the evidence that there was any ignition outside of the furnace, although the fire was so intense as to overheat the chimney and flues and char furni•ture in the rooms. The evidence shows that the chimney was so hot it seemed as though it was on fire; that the fire was burning fiercely in the furnace; around the mop boards was burned and the mop boards blistered; the wall paper charred ■and burned and the chimney cracked from the excessive heat. — 390 — It is the contention of appellant that the damage occasioned ]iy heat, smoke, and soot is not covered by the policy where-the fire is confined within the furnace. This position involves the construction of the words of the policy, “direct loss or damage by fire,” and leads to a consideration of what fires are within the contemplation of the policy. No limitation is placed upon the word “fire” by the language of the policy itself, but it is said that “contracts of' insurance are to be construed according to the sense and meaning of the terms which the parties have used, and, if' they are clear and unambiguous, the terms are to be taken and understood in their plain, ordinary, and proper sense.” No doubt this is the general rule, but it must also be remembered in applying the rule that this and other courts have construed contracts of insurance favorably to the insured. Karow v. Continental Ins. Co. 57 Wis. 56, 15 N. W. 27; Brady v. North Western Ins. Co. 11 Mich. 425; May, Ins. (3d ed.) § 402; Peters v. Warren Ins. Co. 14 Pet. 90. Appellant insists that a fire confined within the limits of' a furnace, although producing damage by smoke and heat, is-not a fire within the meaning of the policy in question, and. ielies mainly upon the case of Austin v. Brew, 4 Camp. 360. In that case the plaintiff was the owner of a sugar factory several stories high with pans on the ground floor for boiling sugar and a stove for heating. A flue extended to the top of the building with registers on each floor connecting with the flue to introduce heat Because of the-negligence of a servant in not opening a register at the top of the flue, or chimney, used to shut in the heat during the night, the smoke, sparks, and heat from the stove were intercepted and, instead of' escaping through the top of the flue, were forced into the rooms, in consequence of which the sugar was damaged. The flames were confined within the stove and flue and no actual ignition took place outside thereof, and it was held that the loss was not covered by the policy. The Lord Chief Justice — 391 — said thát there was no more fire than always existed wh.cn the manufacture was going on, and which continued to burn without any excess. The case seems to turn upon the point that the fire was the usual and ordinary fire, never excessive, and always confined within its proper limits. We shall briefly refer to other cases cited by appellant on this point. In German Am. Ins. Co. v. Hyman, 42 Colo. 156, 16 L. R. A. n. s. 77, the loss was caused by an explosion produced by lighting a match, where the policy contained a provision that the insurers should not be liable for loss by explosion unless fire ensues, and in that event for the damage by fire only. Samuels v. Continental Ins. Co. 2 Pa. Dist. Rep. 397, was a claim for damages caused by smoke and soot from a lamp whose flame flared up above the lamp. United L., F. & M. Ins. Co. v. Foote, 22 Ohio St. 340, was a case of explosion excepted from the policy, and it was held that the fire was caused by the explosion; therefore the loss was occasioned by explosion. Renshaw v. Fireman’s Ins. Co. 33 Mo. App. 394, is also an explosion case caused by ignition from a burning gas jet, and it was held that where the explosion is the direct result of the antecedent fire the policy covers it, but where the explosion is not occasioned by the fire there is no liability for the-result of the explosion. In the one case the fire causes the explosion, and in the other the explosion causes the fire. Briggs v. North A. & M. Ins. Co. 53 N. Y. 446, is a case where the explosion was before the fire and not caused by the fire. Transatlantic F. Ins. Co. v. Dorsey, 56 Md. 70, was a case of explosion, and the main question was whether the fire was the direct cause of the explosion. 1 Wood on Fire Insurance (2d ed.) sec. 103, it is true lays down the general rule that no liability arises where the fire is confined within the limits of the agencies employed, referring to the case of Austin v. Drew, 4 Camp. 360, with the observation that the doctrine of that case had been considerably misconceived by courts and text-writers. Gibbons v. German Ins. & Sav. Inst. — 392 — 30 Ill. App. 263, was a case of damage caused by the escape of steam. Case v. Hartford F. Ins. Co. 13 Ill. 676, discusses Austin v. Drew, supra,, and discards the idea that there can be no loss by fire without actual ignition. Millaudon v. New Orleans Ins. Co. 4 La. Ann. 15, is a case where the damage was caused by the explosion of a steam boiler; while in Waters v. Merchants’ L. Ins. Co. 11 Pet. 213, an explosion of gunpowder is held to be a loss by fire where the thing exploded was on fire. American T. Co. v. German F. Ins. Co. 74 Md. 25, 21 Atl. 553, was a case of overheated boiler owing to the absence of water. Austin v. Drew, supra, is referred to, and it was held damage not covered by the policy. Cannon v. Phœnix Ins. Co. 110 Ga. 563, 35 S. E. 775, is a case where the fire was an ordinary fire in a stove. The fire was what is termed in law books a “friendly” and not a “hostile” fire. In this case the stovepipe became disarranged and smoke and soot escaped, together with the water used in cooling the ceiling causing the damage. Austin v. Drew, supra, is cited in support of the opinion. It will be seen from the foregoing cases relied upon by appellant that the cases in this country in any way tending to support appellant’s contention rest upon the doctrine of Austin v. Drew, which has not been extended, but limited to the particular facts of the case, and the doctrine enunciated therein criticised in some well-considered cases. We shall briefly refer to some of the authorities. At page 929, § 402, Mr. May in his work on Insurance discusses the doctrine laid down in Austin v. Drew and concludes that if the doctrine in that case is intended to go farther than the facts of the case it has been deemed not to be good law by every high authority. In Scripture v. Lowell M. F. Ins. Co. 10 Cush. 356, the doctrine of Austin v. Drew is explained, and the court says that lack of study of the case by courts and text-writers has caused it to be misapplied, and refers to the language of the Lord Chief Justice in Austin v. Drew> to the effect that — 393 — the fire was an ordinary one and no more than always existed when the manufacturing was going on. Singleton v. Phenix Ins. Co. 132 N. Y. 298, 30 N. E. 839, is a case where a boat was loaded with quicklime in barrels. The boat was found to be on fire through the slacking of the lime. It was towed into the riv'er and sunk to prevent total destruction. It was claimed that some water in the boat must have caused the slacking of the lime. Held, that the loss was by fire within the meaning of the policy. Further intimated that it may not be necessary to show actual ignition or combustion to establish a loss by fire. In Way v. Abington Mut. F. Ins. Co. 166 Mass. 67, 43 N. E. 1032, fire in the stove ignited the ■soot in the chimney, and the smoke and soot from the burning chimney escaped into the room and damaged property. Held, that such damage was covered by the policy insuring, -against all' loss or damage by fire. The case seems to have turned upon the fact that the fire in the chimney was a “hostile” fire; therefore the damage caused by such fire was covered by the policy. In Lynn G. & E. Co. v. Meriden F. Ins. Co. 158 Mass. 570, 35 N. E. 690, it was held under an insurance policy against loss or damage by fire that damage to machinery in a part of the building not reached by the fire, caused by short circuiting of electric current, was covered by the policy. It was further held that the fire was the direct and proximate cause of the damage under the words of the policy, “direct and proximate cause.” In California Ins. Co. v. Union C. Co. 133 U. S. 387, 10 Sup. Ct. 365, the words of a policy, “direct loss or damage by fire,” are defined to mean loss or damage occurring directly from fire as the destroying agency in contradistinction to the remoteness of fire as such agency. In German Am. Ins. Co. v. Hyman, 42 Colo. 156, 94 Pac. 27, under an insurance policy providing that the insurer would not be liable for loss by explosion, it was held that if the fire precedes the «explosion and the latter is an incident of the former and — 394 — caused by it, the insured may recover for his entire loss, but if the explosion precedes the fire and is not caused by it the-insured can only recover for the loss by fire. In Russell v. German F. Ins. Co. 100 Minn. 528, 111 N. W. 403, it is-held that to render a fire the immediate or proximate cause of the loss or damage it is not necessary that any part of the insured property actually ignited or was consumed by fire. In Ermentrout v. Girard F. & M. Ins. Co. 63 Minn. 305, 65 N. W. 635, the action was on a policy insuring plaintiff “against all direct loss or damage by fire,” and the policy further provided that if the building fell “except as res-ult-of fire” the insurance on the building should immediately cease. There was evidence tending to prove that a building adjacent to the one insured caught fire and was partially consumed, and as a result of such fire fell, carrying down with it a partition wall and a part of the insured building. Held, that the fall of the insured building was “the result of fire” and “a direct loss or damage by fire,” although no part of it ignited or was consumed by fire. Cameron in his work on the Law of Eire Insurance in Canada, page 51, discusses the effect of the word “direct” in policies providing against “direct loss or damage by fire,” and says that the word has no significance or value, and whether used or not the fire must be the proximate cause of the loss or damage. See, also, Richards, Ins. Law (3d ed.) § 231, -where it-is said that the word “direct” in a policy means immediate or proximate as distinguished from remote, but that the proximate results of fire may include other things than combustion, as, for example, the resulting fall of a building, injuries to insured property by water, loss of goods by theft, exposure of goods during fire. See, also, Elliott, Ins. § 221, and Clement, Eire Ins. as a Valid Contract, 84-87. The foregoing cases, we think, fully show that Austin v. Drew, 4 Camp. 360, is not authority against plaintiff here. There the fire was under control, not excessive, and suitable — 395 — and. proper for the purpose intended. It was, in the language of the hooks, a “friendly” and not a “hostile” fire. In the case before ns 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. Such a fire was, we think, a “hostile” fire and within the contemplation of the policy. Ordinarily the question in such cases is for the jury. NewYork & B. D. E. Co. v. Traders’ & M. Ins. Co. 132 Mass. 377; New York & B. D. E. Co. v. Traders’ & M. Ins. Co. 135 Mass. 221; Richards, Ins. Law (3d ed.) § 231. But in this case the evidence being practically undisputed, we think no error was committed in directing a verdict for the plaintiff. By the Court. — The judgment of the court below is affirmed.