Cuesta v. Royal Insurance , 98 Ga. 720 ( 1896 )

Simmons, Chief Justice.

This was an action upon a policy of insurance, dated March 24, 1893, which insured the plaintiff for one year from that date against “all direct loss or damage by fire” on his store and office furniture and fixtures contained in the three-story brick tin-roof building, - No. 2 Marietta street, Atlanta, Ga. At the conclusion of the evidence for the plaintiff, the defendant moved for a nonsuit, upon the ground that the loss complained of was not a direct loss hy fire. The motion was sustained, and the plaintiff excepted.

It appears from the evidence, that the fire took place on January 9, 1894, and that the loss was occasioned by the falling of a wall of the building on February 3,1894. The fire burned away the greater portion of the roof of the building, and the wall which afterwards fell became very wet from the water used in. extinguishing the fire. An inspection of the walls from top to bottom was made soon .after the fire, by builders acting as adjusters in behalf of the owner of the building and certain insurance companies, but no damage to the wall was discovered. The articles insured were allowed to remain in the building, and about two weeks after the fire the construction of a new roof was begun. Upon the completion of the repairs the plaintiff resumed business in the building. Between the time of the fire- and the time the work on the roof was begun, there were several very heavy and protracted rains; and according to the testimony of the builder who had charge of the repairs, water from the rains poured down in a flood against the wall at the point where it afterwards gave way, and •dammed up against it.

Under this state of facts there was no error in granting a nonsuit.' In no- case can a recovery be had upon an insurance policy for loss by fire unless it appears that the fire was the proximate cause of the loss; and in this instance the policy in terms limited the loss or damage insured against to “direct” loss or damage by fire. Such a loss may be •occasioned by the falling of a wall in consequence, of water being thrown upon it to extinguish a fire; but from the evidence before us, it would be- impossible to say that in the present case this was the proximate, or, in any sense of the term, the “direct” cause of the loss, On the contrary, the evidence tends to show that the efficient and predominating cause was the pouring and damming up of the water against the wall from the heavy rains which fell subsequent to the fire. Judgment affirmed.

Cited for plaintiff: Code, §2799; Ostrander, Ins. 371; 34 La. Ann. 844; May, Ins. §404, 412; Biddle, Ins. 644.

Cited for defendant: California Ins. Co. v. Union Compress Co., 133 U. S. 389, 415, 416; Williams v. Accident Ass’n, 91 Ga. 698; Gaskerth v. Ins. Co., 6 Ins. Law J. 159;. Ins. Co. v. Sherwood, 11 How. 356, 365.