Bowes v. North Carolina Farm Bureau Mutual Insurance

215 S.E.2d 855 (1975) 26 N.C. App. 234

Warren E. BOWES et al.
v.
NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY.

No. 759DC143.

Court of Appeals of North Carolina.

June 18, 1975.

Ramsey, Jackson, Hubbard & Galloway by Mark E. Galloway, Roxboro, for plaintiff.

Haywood, Denny & Miller by John C. Martin, Durham, for defendant.

CLARK, Judge.

The trial court submitted the issue of liability to the jury on the principles of friendly versus hostile fires. Our research of reported opinions discloses that heretofore no previous case has been so submitted to the jury in this State. Therefore, before we review the various assignments of error brought forward in reference to the instructions, we shall discuss the general application and definitional limits of the doctrine.

The friendly fire-hostile fire distinction arose as an interpretative rule to find what was the actual contemplation of the parties to a fire insurance contract wherein the insurer undertook to compensate the insured "against all direct loss by fire." The leading case adopting the distinction was the English case of Austin v. Drew, 4 Camp. 360, 171 Eng.Rep. 115 (1815). The issue which the court had to resolve was: Did the parties intend to include within the undertaking of the insurance company any and all losses caused by fire however started and whatever its nature, or did they intend to make a distinction between intentional and accidental fires as the risk being insured against? The court felt that logically, not all fires were intended to result in a recovery against the insurer, so it sought to construe the policy somewhere between liability in every case and no liability at all. While reports differ as to the precise facts in the case, the test ostensibly arrived at by the court was:

"When a fire has been intentionally lit, and remains in the place designated to accommodate it, neither the insured, nor the insurer intended to treat losses arising therefrom as fortuitous—unexpected in the normal course of events." Reis, The Friendly Versus Hostile Fire Dichotomy, 12 Vill.L.Rev. 109, 115 (1966).

For lack of more appropriate terms, fires within the above category came to be known as friendly; those without, hostile. See Way v. Abington Mutual Fire Ins. Co., 166 Mass. 67, 43 N.E. 1032 (1896). The result of the opinion is that if a fire remains spatially confined to its intended place, situs, it is friendly and no liability should have been contemplated by the parties. However, as later cases employing the rule have revealed, the effect in many instances creates substantive results rather than approaching the rule as interpretive in nature. We believe this is indicated by the fact that the situs test relies principally upon questions of actual consumption or flame, thereby disregarding in many cases the by-product element of fires such as smoke, soot, light, and heat.

As a more recent case infers, the idea of excessive heat may cause an otherwise spatially confined and therefore friendly fire to be regarded as hostile, particularly when viewed from the standpoint of an insured's policy coverage expectations. See Barcalo Mfg. Co. v. Firemen's Mut. Ins. Co., 24 A.D.2d 55, 263 N.Y.S.2d 807 (1965). While the case is factually distinct from that of the present case, it recognizes that "[a]n excessive or uncontrolled fire, sufficient to melt parts of a furnace, surely is included in the intended meaning of the words ``loss or damage by fire.'" 24 A.D.2d at 58, 263 N.Y.S.2d at 810 (Emphasis added). The word "intended" is emphasized for it is well established that the intention of the parties, having due regard to the situation and character of the property being insured and the natural and necessary uses to which it must be put, are paramount in interpreting the effect of insurance contracts. See Baum v. Insurance Co., 201 N.C. 445, 160 S.E. 473 (1931).

While the majority of the decisions throughout the country have applied the situs or confinement test in determining the intention and contemplation of the parties to a fire insurance policy, it is our opinion that if the size of the fire in terms of heat becomes greater than would be anticipated by the insured and if by excessive heat, damages are caused, then it would be reasonable on the part of an ordinary insured to expect that he would be covered. The question of whether a fire, though spatially confined, has become excessive within the contemplation of the parties to the insurance policy would be properly left to the jury pursuant to proper instructions in any particular case. This accords with fairness and appropriately promotes the idea that, after all, the primary object of all insurance is to insure. Even though a fire may be spatially confined to its intended place, if it is extraordinary, or excessive, and unsuitable for the purpose intended, and is in a measure uncontrollable, then the fire is "hostile" as distinguished from "friendly" and is such a fire as would be covered under standard form policies in this State. We note that the principles enunciated above would apply to the situation of the parties in the present case.

Turning to the questions involved here, the record reveals that the trial court instructed the jury on the hostile-friendly fire distinction as follows:

"Now, a hostile fire is—a hostile fire means one not confined to the place intended or one not intentionally started, and it is generally considered to refer to such a fire which if it pursued its natural course would have resulted in a total or partial destruction of the insured property.

When a friendly fire escapes from the place it ought to be—place it ought to be to some place where it ought not to be causing damage, it becomes a hostile fire.

A hostile fire is one which becomes uncontrollable or breaks out from where it was intended to be and becomes a hostile element and where this is such a fire, fire recovery may be had for losses or damages caused by smoke and/or soot and/or heat.

Now, I have talked about hostile fire. I guess in order for you to make a decision in your minds between hostile and friendly, I will give you the definition of a friendly fire.

A friendly fire is one which is employed for the ordinary purpose of heating, lighting or manufacturing and it is confined within its usual limits.

If a fire is burned any place where it's intended to burn, if those damages may have occurred where none were intended, it is a friendly fire, and the insuror [sic] is not liable for damages flowing therefrom."

The instructions of the trial court omitted entirely the concept of "excessiveness" and limited the definition of "hostile fire" to the concept of "uncontrollability". Since the evidence revealed that once the control valves were closed the fires went out, the jury could conclude from the quoted instructions that the fires were controllable and, therefore, friendly. The trial court should have broadened its definition of a hostile fire to include a fire that has become excessive, even though it remains spatially confined to its intended place. Controllability is not control in the sense that one can put out the fire, but control in the sense that the apparatus producing the flame at the time the damage is occurring is operating within reasonably defined operating limits. If the heat being produced substantially exceeds what one could expect the apparatus to produce, the fire becomes hostile. See generally, Vance, Friendly Fires, 1 Conn.B.J. 284 (1927). The broader definition of a hostile fire, with the concept of excessiveness, is a more realistic recognition of the multiple characteristics of a fire and of the risks contemplated and intended to be covered in the fire insurance policy.

For error in the instructions of the trial court, the judgment is vacated and the cause remanded for a

New trial.

MORRIS and VAUGHN, JJ., concur.