The opinion of the writer, which now appears as a dissenting opinion, was intended originally as the opinion of the Court, but, owing to the nonconcurrence therein of the Chief Justice and Justices Watts and Fraser, it has become a dissenting opinion, and the necessity arose for the preparation of a new opinion declaring the judgment of the majority of the Court. Accordingly the Chief Justice has prepared such an opinion. Some matters in that opinion appear to me to require attention, which I shall give in this as an addendum to my former opinion.
The leading opinion declares that the motion of the defendant for a directed verdict should not have been sustained, for the reason that the evidence was in such conflict upon two material issues in the case as to require submission to the jury. These issues are declared to be:
(1) At what time (that is, before or after the collapse of the roof) did the fire originate?
(2) What was the cause of the fire; was it caused by the collapse of the roof or by some other cause?
I concede that, if there was any evidence at all tending to show that the fire originated before the roof collapsed, the motion for a directed verdict was properly overruled. But, as I read the evidence, it not only presents nothing to show that the fire originated before the roof collapsed, but is overwhelmingly to the effect that it originated after.
Counsel for the plaintiff state in their preliminary statement of the facts:
"While the roof was caving in one of the clerks telephoned Mr. Keistler, who had gone to his home. The clerk used the telephone in the store. The center of the roof rested on the center of the floor. Then the fire broke out and destroyed the entire building and stock of goods." *Page 55
There is not a line in their argument which contravenes or even suggests a doubt as to the theory that the collapse preceded the fire. This admission of counsel is thoroughly justified by the evidence.
Mr. Keistler, the manager of the company (plaintiff), was not in the store at the time of the collapse. He testified that he was at home; that two of his men were in the store at the time the roof fell; that one of them telephoned him (evidently, that the roof had collapsed, not that the store was on fire).
J.R. Goudelock, an employee of the plaintiff, testified:
That he was at work in the office when the roof collapsed. "The roof fell in, part of it, and a fire immediately afterwards destroyed our stock of goods." "It fell near the center. If kind o` came down and sheltered the whole stock and the fire immediately afterwards destroyed it." "Our wall was standing when the fire occurred." "The store did not catch fire until after the roof fell in." "The fire had not started when I 'phoned Mr. Keistler. That was the first thing I did. There was a little space of time between the falling in of the roof and the fire."
The presiding Judge charged the jury:
"There is no dispute over the fact that the top of the building collapsed and fell in just before the fire broke out," to which counsel for the plaintiff did not demur. So that by admissions of counsel for the plaintiff, by the evidence in the case, and by the charge of the presiding Judge it indisputably appears that the collapse of the roof preceded the fire. I cannot understand how, in the face of this showing, it can be declared that whether the fire occurred before or after the collapse was an issue to be submitted to the jury.
It is next declared in the leading opinion that —
"As the testimony in regard to the cause of the fire was conflicting, the issue raised by the pleadings was properly submitted to the jury." *Page 56
I find absolutely no contradiction in the evidence as to the origin and cause of the fire. There is not a suggestion in the respondent's argument that it was caused in any other way than by the collapse of the roof. There is not a suggestion in the evidence to that effect. The witness Goudelock testified that there was fire in the stove before the roof fell in. Keistler testified that —
"The stove was about the middle of the store; stove pipe went up to a flue, which went from the girders up through the roof. The pipe and bricks composing the flue had all fallen in over the stove."
It does not appear that the storehouse had a ceiling to it; evidently the pipe from the stove led straight up to a brick flue resting on the girders; that when the collapse occurred the entire structure of pipe and brick flue fell over the stove, leaving nothing between the pipe opening in the stove, which had fire in it, and the encompassing debris of the fallen roof. In view of these facts there is no room for the conjecture that the fire may have been caused by defective electric wiring or from the flue.
The affirmance of the judgment appears to be placed upon the narrow ground that the defendant alleged that the stove was overturned and the evidence showed that it was not; that the defendant, having that as the cause of the fire, was obliged to prove it. In other words, if the evidence showed that the fire was caused by the tumbling down of the pipe and brick flue, exposing the debris to the fire in the stove, the defendant was not entitled to the inference of law consequent upon that condition, because it had failed to allege the exact particulars. I do not think that that position can be maintained. Besides it is a matter of absolutely no consequence how the fire was caused — whether by the collapse of the roof, the overturning of the stove, the fall of the pipe and flue, a defect in the flue or in the electric wiring — if it appears that the fire originated after the roof collapsed, as to which, as I have endeavored to show, there cannot be *Page 57 a doubt. The clause in the contract, which was but the exercise of a contractual right of the parties, explicitly provides that:
"If a building or any material part thereof fall, except as a result of fire, all insurance by this policy on such building or the contents shall immediately cease."
If the fire was caused by the collapse of the roof, then necessarily the collapse preceded the fire, as cause precedes effect. It, therefore, occurred after the collapse; and brings the case squarely within the provision of the policy. If it was caused by some other agency, after the collapse, the provision in the policy clearly exonerates the defendant.
Of course, as I have already conceded, if it originated before the collapse, the provision will not apply. The unbroken line of authorities, so far as I have investigated, sustain this proposition: If the building, or any material part of it, should fall before any fire broke out and caused damage to the property insured, the insured would not be liable.Nelson v. Ins. Co., 181 N.Y., 472; 74 N.E., 421. AssuranceCo. v. Mohlman, 83 Fed., 811; 28 C.C.A., 157; 40 L.R.A., 561. Ins. Co. v. Crunk, 91 Tenn., 376;23 S.W., 140; 4 Joyce, Ins., § 2583; 32 L.R.A. (N.S.), 604, note.
WESTON, Acting Associate Justice, concurs.