Vorse v. Jersey Plate Glass Insurance , 60 L.R.A. 838 ( 1903 )

Deemer, J.

The action is on 'a policy insuring plain tiff against loss or damage by breakage, through accident, of certain plate glass in a building' owned by her in the city of Des.Moines. The policy contained these, among other, stipulations: “This company is not liable to make good any loss or damage which may happen by or in consequence of any fire, * * * and is not liable for any loss or damage to glass caused by the blowing up of buildings.” During the life of the policy the insured property was broken and destroyed, and the cause thereof, according to the agreed statement of facts on which the ease was tried, was as follows: “Third. That the cause of said breakage and destruction in said west storeroom was the explosion of gas generating from gasoline being used in the rear of said'room for the purpose of cleaning clothes, which gas was ignited by a match or light in the room, and said explosion was not caused willfully or by intention on the part of this plaintiff or her tenant; that the said breakage and destruction of the glass and explosion in said west room occurred prior to the fire in said building. Fourth. That on the same day other plate glass in the said building was broken and destroyed as set out in1 count two of plaintiff’s petition .as amended and substituted; that feaid glass was broken by firemen intentionally, and in order to gain access to the building for the purpose of extinguishing a fire which was then burning in the said storeroom; that the doors were fastened, and it was necessary to break in the front of the building for the purpose of gaining admission to put out the fire.” During the trial the plaintiff withdrew the second count of her petition; hence we have nothing to consider but the statements above made as to how the damage occurred.

i. amases glasee*. icyconstrued. I. Defendant contends that the damage was caused by the “blowing up” of the building. These words should be given their ordinary signification, in arriving at .the intent of the parties; and we think, when defined in this light, and applied to the agreed facts which we have quoted, that it does not sufficiently appear that the building was blown up. Ordinarily the term means to scatter or destroy by an.’ explosion of some kind. When we speak of a building as having been blown up, we ordinarily intend to convey the notion that its constituent parts have been scattered, and the integrity of the structure destroyed. This is evidently what is meant by the terms employed in the policy now before us. In any event, the policy, if susceptible of two constructions, should be given-that one which is most favorable to the insured. Collins v. Insurance Co., 95 Iowa, 540; Goodwin v. Association, 97 Iowa, 226. With this rule in mind, • we have no difficulty in arriving at the conclusion that the breakage was not due to the blowing up of the building. See, as supporting these conclusions, Breuner v. Insurance Co., 51 Cal. 101 (21 Am. Rep. 703).

II. The next contention made by defendant is much more difficult of satisfactory solution. It is argued that the damage to the glass happened by, or was in consequence of fire. The real point made is that the explosion was due to, or was in consequence of fire, if not fire itself. The term “explosion” has no fixed and definite meaning either in ordinary speech or in law. It may be described, in a general way, as sudden and rapid combustion, causing violent expansion of the air, and accompanied by a report. It may and does vary in degrees of intensity and in the vehemence of the report, and it is not always due to the presence of fire. Indeed, it may result from decomposition or chemical action. In the case before us, it was undoubtedly caused by fire, or as stated in the agreed statement of facts “by a match or light in the room” which transformed the gasoline gas into heat which was propagated from one particle of air to another and finally against the glass, the shook of which caused the breakage complained of. The stipulation says that the breakage and explosion occurred prior to the fire in the building which we assume means that the glass was broken before any part of the structure or of the goods stored therein were ignited for it is clear that there must have been a match or light in the room which caused the explosion. Did the breakage then happen by or was it in consequence of any fire?

The question is a nice one and by no means -free from doubt; but we are inclined to the view that the loss did not happen by nor was it in-consequence of any fife as those terms are used in the policy in suit. Of course but for the lighted match or other light in the room the explosion would not have happened and the explosion itself was due to rapid combustion. But in ordinary parlance the damage was due to the explosion or to the concussion produced thereby or as said in the agreed statement of facts the explosion and breakage occurred prior to. the fire in the building. The lighted match or other light in the building was not contemplated by the parties as the fire which was excepted by the terms of the policy. It was not a destructive fire against the immediate effects of which the condition in the policy was intended as a protection. It was, it is true, the possible means of putting the destructive force in motion but was not the excepted peril. Had there been no fire after the explosion it seems to us It could not fairly be claimed that the damage done the glass was due to or in consequence of any fire. ‘ The immediate cause of the breakage was concussion produced by the Ignition of ¿as it is true; but that such an effect was due to or in consequente of fire as that term is ordinarily used or as the parties intended it in this case is hardly supposable. In Wood on Insurance vol. 1 (2d Ed.) p. 245 it is said: “Where, however, t.,e explosion is caused by fire the damage must be traceable directly to the fire as the proximate cause and not merely as the result of the explosion. The fire must be shown to be the causa próxima and not the causa remota. If the injury is mtirely due to concussion, the fact that it was caused by ire does not make the fire the proximate cause but the cause of the cause and consequently the causa remota' instead of the causa propsima. ‘It were infinite for the law,’says Lord Bacon‘to consider the causes of the causes, and their impulsion one of another. Therefore it contenteth itself with the immediate cause, and judgeth of acts by that, without looking to 'any further degree.’ £If it were not so,-’ said Byles, J., ‘and a ship was in the neighborhood of Etna or Vesuvius, and was violently shaken by an eruption, that would be damage by fire; or if a gun were fired . off, loaded with small shot, among crockery, that would be damaged by fire; or it rqight be said that, if the heat of the sun was too great, that would be damage by fire.’ ”

2. construcTION of policies.

3. same- damage t>y fire, Policies of insurance should not have a technical construction for the purpose of defeating the insured. He has nothing to do with the wording of the policy, and must accept it as tendered. Hence the rule of construction hitherto quoted. Indeed, we think language such as that on which defendant relies should be given its ordinary and common signification, and not its scientific and technical meaning. The insured went to the company for a policy of insurance on the plate glass in her building, and received a policy providing indemnity for breakage not caused by, nor in consequence of any fire. She had the right to assume that the policy covered damage by an explosion, such as the one in question, and was not called upon to go to some scientist for a technical definition of fire. After all, the question is, what would an ordinary man understand from the use of the term?' Would such a person, having no technical information on the subject, understand that a gasoline explosion, caused by a lighted match, was a fire, in the absence of proof that-something aside from the gas was ignited? We think not. At any rate, the trial judge was authorized to find the negative of this proposition. We cannot too strongly emphasize the thought that the match or other light referred to in the agreed statement of facts was not a fire,. w^hin the meaning of the condition of the policy now under consideration. See United Life Co. v. Foote, 22 Ohio St., 340 (10 Am. Rep. 735); Transatl. Ass'n. v. Dorsey, 56 Md. 70 (40 Am. Rep. 403); Briggs v. Ins. Co., 53 N. Y. 446.

If, then, the lighted match, or other fire which caused the explosion, was not a fire; within the condition of the-policy, and there was no ignition of the building, or of the goods stored therein, which caused the breakage, but all damage was done before the fire was started, as stated in the agreed statement of facts, then it is clear that plaintiff had a right to recover, and that the district court was-correct in its- holding. The parties themselves have distinguished the explosion from the fire in their agreed statements of facts, from which we have quoted. Giving-the language used in the policy its ordinary signification,, and applying it to the agreed statement of .facts, we think the damage did not happen by, nor in consequence of any fire. See, as further supporting our conclusions, Everett v. London Assurance Co., 19 C. B. (N. S.) 126; Mitchell v. Ins. Co., 22 Sup. Ct. Rep. 42 (46 L. Ed. 74); Kenniston v. Ins. Co., 14 N. H. 341 (40 Am. Dec. 193); Dows v. Ins. Co., 127 Mass. 346; Millaudon v. Ins. Co., 4 La. Ann. 15 (50 Am. Dec. 550); Transatl. Co. v. Dorsey, 56 Md. 79 (40 Am. Rep. 403); Louisville Underwriters v. Durland, 123 Ind. 544 (24 N. E. Rep. 221, 7 L. R. A. 399); Boatman v. Insurance Co., 23 Ohio St. 85 (13 Am. Rep. 228); Commercial Co. v. Robinson, 64 Ill. 265 (16 Am. Rep. 557); Caballero v. Ins. Co., 15 La. Ann. 217.

We must take notice, it is said. in argument, of the fact that the condition in the policy in suit exempting the ■company from liability for fire was for the purpose of avoiding double insurance, and that, if the property was destroyed by fire, it was covered by the fire policy on the building, of which the plate glass was a part. Conceding the rule, the conclusion by no means follows. If we are to consider these matters, we are also justified in assuming that the fire policy, if there was one, on the property, contained the usual stipulation exempting the company ffiom liability for losses occasioned by -explosions. It is well known that policies of insurance usually contain such exceptions. See standard forms in the states of Michigan, Minnesota, New . Jersey, North Dakota, Pennsylvania, Wisconsin, Massachusetts, and New Hampshire, as set forth in the appendix to Clement, Fire Insurance Digest; also at page eight of table of contents. With such an exception in a fire policy, it is manifest that it would not cover such a loss as happened in this case.

Keeping in mind the fact that the language of a policy of insurance is to be given its ordinary and popular signification, rather than its technical meaning, and that, when capable of two constructions, it is to be given that which is most favorable to the insured, we reach the satisfactory conclusion that, under the agreed statement of facts in this case, the defendant is liable for the breakage. The judgment is therefore affirmed.