Andrews v. Union Mutual Fire Ins. , 37 Me. 256 ( 1854 )

Shepley, C. J.

— The plaintiffs, as trustees, procured from the company a policy of insurance on the Alfred street Methodist meeting-house in Biddeford, against loss by fire. If no loss has been proved within the risks assumed, it will not be necessary to consider the other objections made to a recovery, however fatal they may be. The contract by the policy is to pay the amount insured “ within three months next after the said property shall be destroyed or demolished by fire, and due notice thereof given.” There is no engagement to pay, if the property shall be destroyed or damaged in any other manner than by fire. No risk beyond that is assumed, unless the terms of the contract may be varied by a reference “ to the provisions of said Act and the by-laws of the corporation.”

By the first section of the Act, it is made “ a body politic” -“for the purpose of insuring any description of property, real or personal, against loss or damage by fire, whether the same shall happen by accident, lightning, or any other means,” with certain exceptions not material in this case.

The account of losses required by the eighth section, are only “ any loss or damage by fire.” If the whole amount of the dep'osit notes should prove insufficient, a dividend can by the tenth section be made only to pay “losses occasioned by fire.” The amount of premium notes are to be retained by the provisions of the fifteenth section, until the time for which insurance'was made shall have expired, in case the property “insured by said company be destroyed by fire.”

No power is by its charter granted to the company to insure property from loss or damage occasioned by any other element than fire. If a loss by fire happen by lightning, or any other cause not within the exception, it may be recoverable. There is no more authority given ,t° insure against loss or damage occasioned by lightning, than by any other element, unless that damage happen by fire.

The twenty-second by-law provides, “ the company will be liable for losses on property burned or damaged by lightning.” Whether this clause, when considered in connexion with the charter and other provisions of the by-laws, maybe construed to mean, that it will .be responsible for damage by fire happening from lightning, and thus be made to conform to the charter, it may not be important to inquire. Eor if it will not admit of such a construction, it cannot enlarge the power of the company and enable it to make contracts not authorized by law or its charter. The powers of a corporation are derived from the law. They cannot be enlarged by any act of the corporate body.

The loss, for recovery of which this action has been commenced, as stated in the declaration, is, “ the said meetinghouse was accidentally, and by misfortune, struck by lightning and thereby greatly torn, split, and shattered, in its timbers and material, and damaged to the amount of one thousand dollars.”

The particular account of the property lost or damaged, presented by the plaintiffs on oath, as required by the fifteenth article of the by-laws, is in accordance with the allegations contained in the declaration. In neither is there any allegation of a loss by fire happening by lightning.

The proof of loss introduced, is of such a loss as is alleged. One witness states, “ there was burning in places that charred the wood so as to make a coal; the burning was not extensive; the burning alone would be merely nominal.” Eor such a merely nominal burning, the plaintiffs have very properly made no claim.

As their loss claimed was not covered by their, policy, the action cannot be maintained. Plaintiffs nonsuit.

Howard, Rice, Hathaway and Cutting, J. J., concurred.