74 Md. 25 | Md. | 1891
delivered the opinion of the Court.
This was an action on a policy of insurance-against loss by fire, issued by the defendant to the plaintiff, on the 3rd day of September, 1887, for the period of one year, and which was continued by renewal for a second year. By the terms of the policy the defendant, in consideration of $25 paid, caused the plaintiff to be assured to the amount of $2,500 on the steam-tug “Samson,” her hull, apparel, machinery, boiler, engine, fixtures and all appurtenances of every description, (with privilege to use the Chesapeake bay and its tributaries,) against all loss or damage to the same by fire, originating in any cause except invasion, foreign enemies, civil commotions, riots, of any military or usurped power whatever, for and during the term of one year, &c. And by another clause in the policy, it is provided that “in case steam power is used in and about the property insured, and the boiler should burst, or any property insured is struck by lightning, or explosion occurs, this company is not liable, unless fire ensues, and then for the loss or damage by fire only.”
There was a second policy held by the plaintiff upon the tug, issued by the Rochester German Insurance Com
It appears that the steamer “'Samson” was a large iron ocean tug, with wooden deck and -house, valued at about $25,000. In August, 1889, while lying at a wharf in Georgetown, D. G., a fire occurred, whereby considerable injury was done to the wood work of the vessel, and the interior of the boiler was seriously damaged. According to the testimony on the part of the plaintiff, the total cost of repair of the damage occasioned by the fire was $3,392.86. Of this amount, the cost of repair of all the damage tmtside of the boiler, was about $1,200, and the balance of the total cost of repair was-for the necessary repair of the inside of the holler. How the fire occurred seems to be involved in something Af a mystery. The fire occurred at night; and, according to the testimony of the engineer on.the tug, the fire in the furnace was banked, and the boiler well supplied with water at the time he retired for sleep about midnight of the 21st of August; though when the fire was discovered, about 4 o’clock of the morning of the 22nd of August, the boiler was entirely without water, and was very hot. Several expert witnesses were examined at the trial, who had.examined the boiler, and they gave it as their unqualified opinion, that, from all the apparent indications, the injury to the interior of the boiler was caused by the fire in the furnace in contact with the boiler, the latter being without water to protect it; “that the inside of the boiler was injured •entirely by being overheated, occasioned by the absence of water necessary to protect it.” The defendant, by
The Court instructed the jury, upon request of the plaintiff, that the latter was entitled to recover, although the jury might find that the fire was caused by or was the result of the negligence or carelessness of the agents of the plaintiff; and that, in estimating the amount of loss, the jury were not restricted to the amount claimed by the plaintiff in the proofs of loss furnished to the defendant; nor to the amounts mentioned in the report of certain referees shown in evidence. And by the fifth prayer of the plaintiff, the jury were instructed .that they could award to the plaintiff such a sum not exceeding $4,000, as they might find the plaintiff sustained, because of the injury or damage to the tug Samson by fire, with interest, &c.; and if they should find any such sum, they should find a verdict for five-eighths of said sum against the defendant, and a verdict for three-eighths of said sum against the Rochester Fire Insurance Company. This latter instruction was given in connection with an instruction granted at the instance of the defendant, to the effect, that if the jury should find from the evidence-that the damage to the interior of the boiler of the steam-tug was occasioned by the overheating of the boiler from the furnace fires, owing to the absence of
The terms of the policy in this case are such as are ordinarily employed in fire policies on steam vessels, where the risk is taken on the hull and all the machinery and ajjpurtenances, of the vessel. And it is conceded that for any injury done by fire to any part of the vessel, ■or her machinery, whether to the boiler or any other part, if the injury was done by ignition or heat generated beyond the furnace, where .the fire was intended to burn, the insurance company would be liable. But the subject of the insurance here necessarily excepts the operation of fire to a certain extent. The subject of the policy is a steam-tug, her boiler and other machinery. Of necessity, fire was to be maintained in the furnace, ■and in contact with the boiler, as means to generate the motive power by which the vessel could be propelled. The burning or warping the bars of the grate in the furnace, though produced by the action of fire, could hardly be supposed to be within the scope of the risk insured against, however general the terms of the policy. And if that be true of the furnace, it is difficult to perceive why it is not equally true of such parts of the boiler as are brought in contact with the fire in the furnace, or the heat evolved therefrom. The fire, while in the furnace, was in its proper place, and where it was intended to be; and it was placed there to act upon the boiler, which, in course of time, would be burnt out or warped, as the grate in the furnace would be, by the continued action of fire thereon. And if such results of the action •of fire upon these materials, while in ordinary use, are not within the risk, it would be difficult to say upon
No doubt there are many instances where the insurer has been held liable for injury done to'buildings and furniture by heat or smoke, ivithout actual ignition, where the heat or smoke has proceeded from fire outside of and beyond the limits of the place where it was intended, by the contract of insurance, to burn. But that is a different question from that presented by the instruction granted at the instance of the defendant in this case, and in accordance with which, we must assume, the jury have found the facts to exist. Here, according to the facts found by the jury, the internal injury to the boiler was produced by the action of fire in the furnace, and not beyond that limit.
We have found no decided case directly in point of fact with this; but text writers of reliable authority, drawing their conclusions from analogy, would seem to maintain fully the proposition embodied in the instruction granted by the Court below at the instance of the defendant.
In Wood on Fire Insurance, sec. 103, it is laid down as text law, that “Where fire is employed as an agent,
We think the .Court below properly instructed the jury by granting the plaintiff’s third and fourth prayers, and the plaintiff’s fifth prayer in connection with the prayer offered by the defendant, and that there was no error in rejecting the first, second and sixth prayers of the plaintiff; and therefore the judgment must be affirmed.
Judgment affirmed.