The question here is solely one of law. It involves the interpretation of the phrase "all direct loss or damage by fire," as contained in the standard form of fire insurance policy adopted by the Legislature of this state. The agreed statement of facts as set forth in the majority opinion shows that the article of jewelry was inadvertently thrown into a trash burner located in the yard of plaintiff's home and was burned when a fire was started for the purpose of destroying trash contained in the trash burner. At no time did the fire exceed its proper bounds, or attain an unusual or unanticipated intensity. It was confined entirely within its proper limits, and there is absolutely nothing in the record even tending to show that it was anything but one of the most friendly of what the jurisprudence terms "friendly" fires.
This is not a case where the damage occurred outside the proper confines of the fire, and all of those cases involving scorching, smoke, soot, and the like, have no application here. Nor has the question of fault, negligence, or inadvertence on the part of the insured, any place in this case. It is simply a question of whether or not an article destroyed by fire, when inadvertently placed within the proper confines of a friendly fire which is in no way an unusual or extraordinary fire, comes within the meaning and intention of the above-quoted phrase of the standard form of fire insurance policy. Friendly fires sometimes misbehave and cause unfriendly fires, from which liability flows. The fire in this case was completely docile and well behaved. It would serve no purpose to cite hypothetical cases, as each particular case must be considered on its merits. If there is liability here, the terms "friendly fires" and "hostile fires" found so frequently in the jurisprudence are annihilated.
I cannot agree with my colleagues that under the facts of this particular case the damage was the "direct loss or damage by fire," as contemplated by the policy contract, even under the most liberal interpretation, and I, therefore, respectfully dissent. *Page 344