Cole v. United States Fire Ins. Co. , 265 Mich. 246 ( 1933 )

I cannot agree with the result reached by Mr. Justice WEADOCK.

The house was damaged by both explosion and fire. Plaintiffs recovered for the whole damage on the theory it was all a fire loss. Defendants denied liability for that part of the damage caused by the explosion. The proofs attempted no determination of the loss attributable to each.

The facts are undisputed. The events in sequence were that Sickrey scattered gasoline in the basement with the purpose of burning the house, he went outside, threw a lighted match through the open window, the flame caused the gasoline vapor to ignite, an explosion and fire resulted, each causing damage.

The policy insured "against all direct loss or damage, by fire," except, etc. The insurer is not liable for loss occurring "by explosion or lightning unless fire ensue, and, in that event, for loss or damage by fire only."

The general rule is:

"Under a provision of the latter character, if the fire precedes the explosion and the explosion is an incident thereto, the fire is the direct or proximate cause of the injury by the explosion, and the insured is entitled to recover for his entire loss; but, if the explosion precedes the fire and is not caused by it, he can, under the express terms of the policy, only recover for that proportion of the damages resulting from the fire alone." 14 Rawle C. L. p. 1218.

See, also, Judson v. Manhattan Fire Marine Ins. Co.,243 Mich. 458; 26 C. J. p. 344; notes in 38 L.R.A. (N.S.) 474; 13 A.L.R. 883; 44 A.L.R. 870; 65 A.L.R. 934.

The general rule, however, does not solve our problem. It is held that where an explosion of gas is caused by an innocent flame, like a lighted lamp or match, the damage therefrom is an explosion, not a fire loss under the policy. Ross v. L. L. G. Ins. Co., 83 N.J. Law, 340 (84 A. 1050); Briggs v. N. A. M. Ins. Co., 53 N.Y. 446; Zamboni v. Imp. Dealers Mutual FireIns. Co., 174 Minn. 122 (218 N.W. 457). This ruling is in harmony with the construction that the policy does not insure against innocent or friendly fire. Harter v. Phœnix Ins.Co., 257 Mich. 163. However, where a lighted match, carelessly thrown into a keg of gun powder, caused an explosion and fire, the whole damage was held to be a fire loss. Hobbs v. NorthernAssurance Co., 12 Can. Sup. Ct. 631. The negligence converted the flame into a hostile fire.

The case at bar is quite unusual and does not fit into any of the reported cases. The lighted match was a hostile element, intentionally criminal. The gasoline was not an innocent occupant of the house. It was a malicious enemy, introduced specifically as an instrumentality to burn the building. Both the lighted match and gasoline were so intended and so resulted. When the flame from the match set fire to the gasoline vapor, the elements of destruction by fire were in full operation. The fact that an unexpected explosion occurred does not prevent the damage being wholly a fire loss because it happened as an incident of the burning and was subsequent to the first hostile fire which, in uninterrupted operation, caused the conflagration. The whole damage was within the policy as a fire loss.

Defendants raise other points in connection with liability but, under the findings of fact by the court, amply supported by the testimony, and repeated decisions of this court, they need no discussion. However, defendants urge that the decree is erroneous in providing joint judgment against the defendants instead of adjudging pro rata liability and in failing to provide for subrogation.

The court recognized the right of subrogation and suggested that counsel present their views. Evidently it was not done. If counsel desire to propose amendments to the decree in these respects, they will be considered on settlement; otherwise the decree is affirmed, with costs to plaintiffs.

MacDONALD, C.J., and POTTER, NORTH, WIEST, and BUTZEL, JJ., concurred with FEAD, J.