The decision of this appeal turns on the meaning of the words "fire originating within the vehicle," which form part of an exception that is claimed to release the defendant from the obligation of its general promise to insure "against all direct loss or damage by fire." The exception from the promise is not a part of the printed policy, but was written in and is peculiarly the language of the insurer. If the meaning of the exception is in doubt, the law holds the company responsible "because it prepared and executed the contract, and the language used is wholly its own." (Rickerson v. Hartford Fire Ins. Co.,149 N.Y. 307, 313.) The learned Appellate Division gave the words in question one meaning, while the referee and one of the justices below gave them another. We also differ with no uncertain divergence of views as to what they mean, and can it be said under these circumstance, with propriety or truth, that the meaning of the company is expressed so clearly as to exempt it from the application of the rule that the author of a serious doubt in a written instrument must bear the burden thereof?
Where did the fire originate and what was the direct cause thereof? The gasolene was a mere potentiality, the same as a bundle of pine shavings or a can of gunpowder might have been. It did not cause the fire, for there is no claim of spontaneous combustion. It was highly inflammable, but it was not the first material that caught fire. The fire did not originate in the gasolene. It originated in an explosive vapor that came partly but not wholly from the gasolene, owing to rapid evaporation after it had escaped from the vehicle. The gasolene in the form of a liquid oil flowed out of the inverted *Page 147 tank on the ground or water beneath. It was then no longer within but wholly without the vehicle and it was not then on fire. Contact with the air and combination therewith at once turned it into a vapor or gas, that is, "a compound or mixture capable of a rapid chemical reaction," known as an explosion. It was not until after the gasolene was resting on the surface of the earth, wholly free from the vehicle, that the gas came into existence. As a gas it was never inside of the vehicle. It was a new substance, composed of gasolene and air. It was created by the action of the outside air upon the gasolene after it was also outside. That action took place without the vehicle and the product of evaporation sprang into existence without the vehicle. It was never within the vehicle, for it was not composed wholly of gasolene. A new element was added to the gasolene after its escape and the oil and air compounded, not simply combined, was a new substance. This new substance, thus brought into existence without the vehicle, caught fire, doubtless from contact with the flame of a kerosene lamp. Assuming that the lamp was part of the vehicle, that which first took fire was not a part of it, nor within it. The gas, floating in the air wholly outside of the vehicle, first caught fire and that fire was communicated to the vehicle and destroyed it. The fire, me judice, did not originate within the vehicle, any more than if the vehicle had run into a hay stack, the lamp had set fire to the hay and the burning hay had set the vehicle on fire; or, to use another illustration, if the vehicle had overturned a storage tank and the gas arising from the oil as it flowed on the ground had been ignited by the lamp and fire had thus been communicated to the vehicle itself.
The purpose of the exception from general liability imposed on the defendant by the policy, as I gather the meaning from the words used, was to exempt the insurer when the fire was caused by the operation of the machinery, or by defects in the vehicle itself, or by inherent agencies which were a part of the machine and operated wholly within it, with no aid from external causes. Such a fire would owe *Page 148 its origin wholly to internal conditions, and hence could properly be said to have "originated within the vehicle." The fire in question originated without the vehicle, for it was kindled outside and was burning outside before the vehicle itself caught fire.
I vote for affirmance and judgment absolute against the appellant on its stipulation.
GRAY, HAIGHT, WERNER and WILLARD BARTLETT, JJ., concur with CULLEN, Ch. J.; CHASE, J., concurs with VANN, J.
Order reversed, etc.