Westchester Fire Insurance v. Bell , 151 Ga. 191 ( 1921 )

Beck, P. J., and Atkinson, J.,

dissenting. The statute (Civil Code, § 2476) referred to in the opinion of the majority defines “ loss by fire,” and makes it include loss by explosion of dynamite when done to stop a conflagration. Hnder this definition, a loss is “by fire” whether caused by actual flames or from explosion of dynamite made to stop a conflagration. The contract of insurance must be construed in connection with the statute, which becomes a part of the contract. The explosion of dynamite to stop the conflagration was intentional, and was done for the benefit of both the insurer and insured. That is not the kind of explosion contemplated by the exception in the policy of insurance. It had reference to accidental explosions or explosion from other causes, such as might result from negligence or wrong-doing, or other cause than voluntary act where necessary and done to stop a conflagration. Applying the contract as embodying the statute, if dynamite is exploded to prevent a conflagration, and a window in a neighboring building be broken by the concussion, the loss would be as much a direct loss by fire, within the meaning of the contract, as if a burning coal blowing from a conflagration should touch the window and cause it to break from the heat. If the contract, as embodied in the policy of insurance, should be literally or strictly construed without reference to the statute, a different result would be required: but the statute is by operation of law written into the contract, and its provisions are not excluded expressly or by necessary implication by the language of the policy. The decisions cited by the majority did not involve cases in which statutes similar to the code provision, supra, entered into the contract.