dissenting. Mr. Phillips, in his work on Insurance, in treating of the question, “ whether the underwriters are liable for loss by fire, where the loss is occasioned or the subject is destroyed thereby, without its being actually burnt,” says:
“ The maxim carna próxima spectatur, affords no help in these cases, but is in fact fallacious; for if two causes conspire, and one must be chosen, the more scientific inquiry seems to be, whether one is not the efficient cause, and the other merely instrumental, or merely incidental, and not which is nearest in place, or time, to the consummation of the catastrophe.” g1097.
*219He further says : “ The common place maxim, that in cases of doubt to which of two or more perils the loss is to be assigned, causa próxima non remota spectatnr, has been not nnfrequently resorted to, by which was meant, originally at least, that a loss is to be attributed to the peril in activity at the time of the ultimate catastrophe, when the loss is consummated. But much of the jurisprudence is contradictory to the maxim taken in this sense, and it seems to have served rather to divert attention from the proper inquiry, and to becloud instead of elucidating the subject. 1 understand the result of the jurisprudence to be, that, in case of the concurrence of different causes, to one of which it is necessary to attribute the loss, it is to bo attributed to the efficient predominating peril, whether it is or is not in activity at the consummation of the disaster.” $1132.
Upon the principle above stated, it has been held that underwriters are liable for damage by water thrown upon goods to extinguish a fire, and for loss by plunder of goods removed away from the fire, and for the loss of a building blown up by gun-powder and demolished to arrest the spread of a conflagration, which would soon have destroyed it. In these cases, the “water," the “plunder," and the “ explosion,” were, in point of fact, the proximate causes of the loss, but were held to be merely incidental to the fire. And upon the principle of these cases, I think, the underwriters are liable; for the explosion of the gun-powder was but an incident to the fire, which was the efficient predominating cause of the loss, and it was so held by the Supreme Court of the United States in the case of Waters v. Merchants’ Louisville Ins. Co., 11 Peters, 213.
The fire in question was a conflagration, and was a peril insured against in the sense of the policy, which contains no stipulation that the fire should be upon the premises of the assured, as a condition precedent, to the liability of the underwriters, for the loss. And to hold that the liability does not attach, because the fire was not upon the premises, is in effect to make a new contract for the parties.
If the assured has sustained a loss by a peril insured against, the particular locality of the peril is in principle immaterial; for the peril and the loss entered directly into the consideration of the parties at the time of making the contract of indemnity, and the consequences are the same to the assured, whether the peril was in activity on his own premises, or on those of his neighbor, and they should be the same to the underwriters, in the absence of a stipulation to the contrary.
In my opinion, the judgment of the lower court should be affirmed.
Buchanan, J., concurred in the above opinion.