Cook v. Continental Ins. Co.

This is an action on a policy of fire insurance, whereby the defendant insured the plaintiff's building, referred to in the evidence as "Goree-Norris building," "against all direct loss or damage by fire, except as hereinafter provided, to an amount not exceeding forty-five hundred and no/100 Dollars."

The facts are conceded to be without dispute, and for the purposes in hand may be stated to be: On June 4, 1927, a fire originated *Page 165 in the business district of the city of Montgomery some distance from plaintiff's building, and fanned by a strong wind, before the explosion of a charge of dynamite by the fire department as a means of checking the fire, had traveled several hundred feet toward the east, consuming everything in its path, in width about 300 feet, and plaintiff's building, which was in the direct path of the fire, had caught from sparks several times. Two automobiles inside the building had been burned, and the top of a telephone pole, located within 20 feet of the plaintiff's building, had been burned off. The witness Spencer, who occupied the Goree-Norris building, testified, to quote from the record, "that at the time of the explosion he was on top of the roof of the Goree-Norris building; * * * that at the time of the explosion the wind and the fire were raging kinder toward the Goree-Norris building; that the Goree-Norris building caught fire on top; that it was on fire before the explosion; that he was on top of the building putting it out; that it had caught at least five or six times; that it was blazing up there; that he put it out with a hose; that it was so hot on top that the fire blistered his face; that there were automobiles in the building; that two of the automobiles in the building caught fire and the tops were burned off; that this was on the inside of the building and was just before the explosion; that fire was raging at the time of the explosion; that after the explosion it looked like the whole fire just went out, just dropped down where the explosion was. This building had two walls. That before the explosion and at the time of the explosion the fire was leaping across to the Goree-Norris building and leaping everywhere. It was leaping from the building that was dynamited, coming toward the Goree-Norris building."

Chief Nixon of the fire department testified, referring to the International Truck Company building that was dynamited: "It was just like a tar-kiln and smoking all over but the fire hadn't broke out. * * * This building never blazed out but it was a fire all over. In fact, you couldn't get into the building, but it didn't burn there anywhere — didn't blaze up."

This witness further testified, in respect to the Goree-Norris building being in the direct course the fire was taking: "Oh, yes, the Goree-Norris building and the other one too, because the flames were leaping up, we had flames everywhere and it looked like the whole thing was going to burn, and if the corner building (the one dynamited) had blazed out, you understand, there is no telling where it would have leaped to, because the high building, that tall building was just fixing to break out."

The appellant's building is located 150 feet from the International Truck Company's building on the corner of Bibb and Coosa streets, and during the progress of the fire, the fire department of the city, for the purpose of checking the fire, caused a charge of dynamite to be exploded under the truck company's building, and by the concussion from the explosion plaintiff suffered a loss of $618.76, which she seeks to recover in this action. The evidence is clear to the conclusion that the explosion of the dynamite at the time and place was reasonably necessary to check the fire, and as the result of the explosion the fire was brought under control and plaintiff's building saved from burning.

The appellant's contention now is that the explosion was a mere incident of the fire and that the damage caused thereby was within the hazards covered by the policy as a direct loss by fire.

The appellee's contention, which prevailed on the trial, is that the loss suffered by the plaintiff is clearly within the exception embodied in the policy to the effect that: "This Company shall not be liable for loss caused directly or indirectly by invasion, insurrection, riot, civil war or commotion, or military or usurped power, or by order of any civil authority, or by theft, or by neglect of the insured to use all reasonable means to save and preserve the property at and after the fire or when the property is endangered by firein neighboring premises; or (unless fire ensues, and, in thatevent, for the damage by fire only) by explosion of any kind." (Italics supplied.)

The construction of this exception, embodied in the standard policy of fire insurance, has been the subject of much controversy, and, as will appear from an examination of the decided cases, it is not entirely clear of meaning and its construction has provoked much contrariety of opinion. To paraphrase the provision of the contract here pertinent, it is:This Company shall not be liable for loss caused directly orindirectly by explosion of any kind, unless fire ensues, and inthat event for damage by fire only. And the question to be decided is: Was it within the contemplation of the parties, in entering into this contract, to exclude liability resulting from explosion friendly to the interest of the parties to the contract, designed to check and save the insured property from destruction, or is it limited to hostile explosions, inimical to the interest of both parties, not caused by fire.

To adopt the language of the opinion heretofore promulgated: "The intention of the parties must prevail. If that is clear, the courts have no authority to change the contract in any particular (Day v. Home Ins. Co., 177 Ala. 607, 58 So. 549, 40 L.R.A. [N. S.] 652); if doubtful, the court will lean to that meaning most favorable to the insured, remaining, however, at all times within the terms of the contract, which is to say: 'Where the provisions of a policy of indemnity *Page 166 are reasonably susceptible of two constructions, consistent with the object of the obligation, one favorable to the assured, and the other favorable to the assurer, that will be adopted which is favorable to the assured.' Travelers' Ins. Co. v. Plaster, 210 Ala. 610, 98 So. 909; Ill. Automobile Ins. Exch. v. Southern Motor Sales Co., 207 Ala. 265, 92 So. 429, 24 A.L.R. 734."

To state the rule in the language of another opinion: "Our guide is the reasonable expectation and purpose of the ordinary business man when making an ordinary business contract. It is his intention, expressed or fairly to be inferred, that counts. There are times when the law permits us to go far back in tracing events to causes. The inquiry for us is how far the parties to this contract intended us to go. The causes within their contemplation are the only causes that concern us." Bird v. St. Paul Fire Marine Ins. Co., 224 N.Y. 47-51,120 N.E. 86, 87 (13 A.L.R. 875).

There can be no doubt that when fire precedes an explosion and spreads to the insured's building and there causes an explosion, the insurer under the standard policy is liable for the damage. Bird v. St. Paul Fire M. Ins. Co., supra; Wheeler v. Phenix Ins. Co., 203 N.Y. 283, 96 N.E. 452, 38 L.R.A. (N.S.) 474, Ann. Cas. 1913A, 1297; Lynn Gas Electric Co. v. Meriden Fire Ins. Co., 158 Mass. 570, 33 N.E. 690, 20 L.R.A. 297, 35 Am. St. Rep. 540; Scripture v. Lowell Mutual Fire Ins. Co., 10 Cush. (Mass.) 356, 57 Am. Dec. 111; Waters v. Merchants' Louisville Ins. Co., 11 Pet. 213, 225 (9 L.Ed. 691).

And in the absence of an exception which excludes the risk, a like liability follows when an explosion caused by fire occurs in a neighboring building. Bird v. St. Paul Fire Marine Ins. Co., supra; Hustace v. Phenix Ins. Co., 175 N.Y. 292,67 N.E. 592, 62 L.R.A. 651; Githens v. Great American Ins. Co. of N.Y., 201 Iowa, 266, 207 N.W. 243, 44 A.L.R. 863; Western Assur. Co. v. Hann, 201 Ala. 376, 78 So. 232.

And, likewise, in the absence of an exception which excludes the hazard, a like liability follows when explosives are used as a means of stopping the spread of fire, such loss being adjudged to be mere incident of the fire like that resulting from the use of water, chemicals, or other agencies to prevent the spread of fire. Greenwald v. Insurance Co., 3 Phila. (Pa.) 323; 14 R. C. L. 1218, § 398; 26 C. J. 342, § 434; 4 Joyce on Ins. § 2824.

The question of proximate cause, though involved in the question of ultimate liability, is not involved in the consideration of the exception. The question is whether or not the character of explosions here involved was within the contemplation of the exception excluding liability for damages resulting from explosions.

In Wheeler v. Phenix Ins. Co., 203 N.Y. 283, 96 N.E. 452, 38 L.R.A. (N.S.) 474, Ann. Cas. 1913A, 1297, in which all the Justices concurred, the case of Hustace v. Phenix Ins. Co.,175 N.Y. 292, 67 N.E. 592, 62 L.R.A. 651, decided by a divided court, was explained, limited, and qualified, and in the Wheeler Case, the exception in the standard policy was construed. It was there said, speaking of the exception: "It is apparent that a fire, which precedes and causes theexplosion, is not embraced in the exception contained in thepolicy from the provision which insures against all direct lossor damage by fire. [Italics supplied.] Nor do we think that the words 'by explosion of any kind' were intended to refer to the agency which produced the explosion but have reference to the different kinds of material that explode, such as powder, dynamite, gas, dust, etc. Had the Legislature, in adopting thestandard form of policy, intended to have included explosionscaused by fire with explosions from which fire ensues among thelosses excepted from the provisions of the policy it doubtlesswould have done so in express terms. That such was not itsintention we think is clearly evident from the fact that theywere careful to limit the exception to those explosions fromwhich a fire ensues." (Italics supplied.)

In the Wheeler Case the court cites with approval Washburn v. Miami Valley Ins. Co. (C. C.) 2 Flip. 664, 2 F. 633, decided by Justice Swayne of the Supreme Court of the United States, construing the clause, in which it was observed: "Explosives are named only in connection with fires which they have produced. There is nothing said about them in connection with fires which have produced them. The policies on that subject are wholly silent."

The exception deals with hostile agencies, agencies inimical alike to the interest of the insured and the insurer, "invasion," "insurrection," "riot," "civil war or commotion," "military or usurped power," "theft," or "by order of any civil authority," "fires caused by explosion," and imposes on the insured the duty "to use all reasonable means to save the property at and after the fire or when the property isendangered by fire in a neighboring premises."

From these considerations it seems clear that damage resulting from the use of friendly agencies reasonably necessary to prevent the spread of fire to the insured building then in danger from such fire then raging, whether it be water, chemicals, or explosives, was not within the contemplation of this exception, and damages so caused must be regarded as mere incidents of the fire, covered by the policy. 4 Joyce on Insurance, § 2824; City Fire Ins. Co. v. Corlies, 21 Wend. (N.Y.) 367, 34 Am. Dec. 258.

This view is not only strongly supported by these authorities, but by reason and common *Page 167 sense. It is not reasonable to suppose that the insurer would insure the property from the hazard of fire, and in the same contract suppress and discourage the use of agencies ordinarily used in extinguishing fires, such as water, chemicals, and explosives. The facts of this case clearly illustrate the fallacy of such contention. If the fire in question had not been brought under control by the explosion, assuming that plaintiff's building would have been destroyed, and the evidence warranted the jury in so finding, the resulting liability would have been $4,500. According to the evidence of the chief of the fire department, the fire had reached the stage where the use of water was ineffective, because the firemen could not get to it where it was raging in the building dynamited with this agency, making the use of dynamite necessary, and by its use the liability was reduced to something over $600.

We have but to quote from the opinion of the court in Wheeler's Case, to differentiate this case from the Hustace Case: "In the Hustace Case a large building at the corner of Warren and Greenwich Streets in the City of New York, occupied by dealers in drugs and chemicals, was on fire. The fire had raged for half an hour and then a terrific explosion took place caused by the igniting of the chemicals stored therein, wrecking several buildings, among which was that of the plaintiff's, which was located across a street or alley some fifty-seven feet distant therefrom. The plaintiff's building fell by reason of the concussion caused from the explosion.No hostile fire was in progress upon the plaintiff's premises and no explosion occurred therein. It was held in this court that the loss sustained by the plaintiff was not a 'direct loss or damage by fire' within the meaning of the policy, but thefire was only a remote and indirect cause of the concussion which caused the plaintiff's building to fall. * * * It may be true that in the opinion discussing the various cases upon the subject there may be some expression that has misled the trial Court in this case, but the learned chief judge in concludinghis opinion in that case was careful to limit the decision tothe peculiar facts presented in that case." (Italics supplied.)

The clear effect of the holding in the Hustace Case is that the explosive clause protects the insurer against liability resulting from explosions, though the explosion is preceded and caused by a fire, as the following utterances taken from the opinion in that case demonstrate:

" 'The plaintiffs insist, however, that an explosion caused by a fire is a fire, and, therefore, defendant is liable for the explosion as for a fire. But that reasoning gives no force to the exception. It allows a recovery for the explosion when the policy expressly stipulates that the defendant will not be liable for that. It may be conceded that in the absence of this exception a recovery could have been had for the whole damage as for loss by fire. The authorities referred to by the plaintiffs' counsel tend to that result. I do not think that position will aid the plaintiffs. An explosion without this exception, if it came under the general head of fire, might have afforded ground for recovery, but defendant guarded against that result by this express stipulation. The exception, too, is general, including explosions by fire as well as others.'

"As will be seen by comparison of the exemption clause in that policy with the one under consideration, that decision, as well as the argument of the court, in which all concurred, is equally applicable to the clause in this policy and to this situation.

"The Briggs Case [53 N.Y. 446] is the only authority in this court precisely in point as to the construction to be given to this exemption clause, and in that case the fire followed the explosion; but the court said of the exemption clause that it included explosions caused by fire as well as others." 175 N.Y. 299,67 N.E. 594, 62 L.R.A. 651.

The Wheeler Case is to the contrary. We quote the syllabus (203 N.Y. 283 [96 N.E. 452, 38 L.R.A. (N.S.) 474, Ann. Cas. 1913A, 1297]): "When a policy of insurance against fire upon a grain elevator provides that the company should not be liable for loss by explosion of any kind unless fire ensues, and in that event for the damage by fire only, a fire preceding and causing the explosion is not embraced in the exception from the provision which insures against all direct loss or damage by fire, and if a negligent or hostile fire exists within the insured premises and an explosion results therefrom under such circumstances as to constitute the fire the proximate cause of the loss and the explosion merely incidental, the company becomes liable upon its policy for the loss resulting therefrom."

The gist of the decision of the Georgia court in Westchester Fire Ins. Co. v. Bell, 151 Ga. 191, 106 S.E. 186, 13 A.L.R. 880, which cites and relies on Hustace v. Phenix Ins. Co., supra, is found in the following expression, after quoting the explosion clause: "The exception expressly states that the Company shall not be liable for loss caused directly or indirectly by explosion of any kind, unless fire ensues, and, in that event, for damage by fire only. This language is explicit and unequivocal. The use of the expression 'explosion of any kind' indicates that explosions of more than one kind were contemplated; and the obvious meaning of the exception isthat the Company shall not be liable for loss caused directlyor indirectly by any kind of an explosion whatsoever, unlessfire ensues from the explosion, and in that event the Companyshall be liable for damages caused by the fire *Page 168 only, and not by the explosion." (Italics supplied.)

This case is clearly in conflict with the holding in Wheeler v. Phenix Ins. Co., 203 N.Y. 283, 96 N.E. 452, 38 L.R.A. (N.S.) 474, Ann. Cas. 1913A, 1297, and Washburn v. Miami Valley Ins. Co. (C. C.) 2 F. 633, and the weight of authority as to the construction of the explosion clause. See annotation 13 A.L.R. 883; Githens v. Great American Ins. Co. of N.Y., supra.

The substance of the holding in the Githens Case is summarized in the first headnote 44 A.L.R. 863, as follows: "Under a policy insuring against all direct loss or damage by fire except loss by explosion of any kind unless fire ensues, and, in that event, for damage by fire only, the insurer is liable if fire works across the division wall from an adjoining building and causes an explosion which lifts the roof and injures the insured property, although no fire follows the explosion within the building where the insured property is located." See, also Liverpool L. G. Ins. Co. v. Currie (Tex.Civ.App.) 234 S.W. 232.

The fault in the opinion of my brother, Mr. Justice SAYRE, while it correctly states the rule of construction, ignores this universal rule, as did the Court of New York in the Hustace Case, and the Georgia Court in the Bell Case, and construes the explosive clause most favorably to the insurer.

If the plaintiff's building was within the zone of danger from the raging, hostile fire, a question which, under the evidence, was one for the jury, and the dynamiting of the truck company's building was reasonably necessary to check the progress of the fire, this lawful act could not be considered an independent intervening force sufficient to break the chain of causation that would relieve the insurer from liability. Thompson v. L. N. R. R. Co., 91 Ala. 501, 8 So. 408, 11 L.R.A. 146; Dye-Washburn Hotel Co. v. Aldridge, 207 Ala. 475,93 So. 512.

To quote again from Bird v. St. Paul F. M. Ins. Co.,224 N.Y. 52, 120 N.E. 87, 13 A.L.R. 875: "We must put ourselves in the place of the average owner whose boat or building is damaged by the concussion of a distant explosion, let us say a mile away. Some glassware in his pantry is thrown down and broken. It would probably never occur to him that within the meaning of his policy of insurance, he had suffered loss by fire. A philosopher or a lawyer might persuade him that he had, but he would not believe it until they told him. He wouldexpect indemnity, of course, if fire reached the thing insured.He would expect indemnity, very likely, if the fire was near athand, if his boat or his building was within the danger zone ofordinary experience, if damage of some sort, whether from ignition or from the indirect consequences of fire, might fairly be said to be within the range of normal apprehension." Under the facts of this case, the trial court erred in directing a verdict for the defendant, and for this error the judgment must be reversed.

GARDNER and FOSTER, JJ., and BRICKEN, Special Justice, concur in the foregoing.

SAYRE, THOMAS, and BOULDIN, JJ., dissent.

ANDERSON, C. J., not sitting.