6 Barb. 637 | N.Y. Sup. Ct. | 1849
This action was brought upon a policy of insurance against loss by five. The wovd fire, in contracts of this kind, should be construed in its ordinary signification. (6 Bac. Abr. 658.) It should not be confined to any technical and restricted meaning which might be applied to it upon a scientific analysis of its nature and properties, nor should it receive that general and extended signification which by a kind of figure of speech is sometimes applied to the term; but it should be construed in its ordinary popular sense. Nor is the damage, for which fire insurance companies are liable, to be confined to loss by actual burning or consuming; but they are liable for all losses which are the immediate consequences of fire or burning. (City Fire Ins. Co. v. Corlies, 21 Wend. 367.) Thus goods injured by being removed to save them from fire, or by water in extinguishing a fire, are within the provisions of the policy. So other cases might be mentioned, where the insurers are liable for damages which can be traced directly to fire as the immediate cause of the loss, and yet the insured article itself be in no danger of being burned or consumed.
But giving to the plaintiff in this cause the benefit of the most liberal rule yet established by legal adjudication, I am wholly unable to arrive at the conclusion that the damage done to the plaintiff’s house was a loss within the provisions of the policy.
First. The plaintiff has the onus probandi upon himself. In order to entitle him to a recovery he must prove that the loss was occasioned by fire; and as the building was not consumed nor set on fire, he must be able to show that electricity, of sufficient intensity to rend a building, is fire, in the popular and ordinary signification of the term. It is not sufficient to show that fire is one of its constituent principles. He must be able to demonstrate that the rending and destruction of the building were the result of that particular principle. That I think cannot be done in the present state of the science of electricity. It can neither be proved that fire, in its ordinary signi
Mr. Sturgeon, an able and lucid lecturer upon the subject of
I may remark, in passing, that it is with a considerable degree of diffidence that I dissent from the positions taken by the learned jurist, Judge Willard, who has written an opinion upon the points involved in this case, and which was cited upon the argument. If I understand the position taken by him, it is that if the lightning had not torn the building to pieces it would have set it on fire, and hence he deduces an argument in favor of holding the company liable.
In the first place, I am unable to find any evidence that there was any such alternative in the case. The phenomena of nature are constant: like causes produce like effects; and there is no evidence that the electric fluid which demolished the house was, under the existing circumstances, capable of setting it on fire, or exhibiting any different phenomena from those which it did exhibit. - In the second place, if it were so, it would not alter the case. The contract of the insurers was to indemnify the-insured against loss by fire. It by no means follows that they are liable for the damage done by violence to the insured property because the agent by which the violence was effected might have set it on fire. A heated ball or bombshell may injure the building against which it is hurled. It would not do to hold the insurers liable because, if the force which caused it to perforate the wall had been less, or the resistance greater, it might have lodged in the walls and set them on fire.
Secondly. If it could be demonstrated that the mechanical action of lightning is the-result of its calorific properties, it by no means follows that the damage is occasioned by fire. The terms caloric and fire admit of very different significations. One is the cause and the other the effect That which is term
Unless, therefore, there be actual ignition, and the loss be the effect of such ignition, the insurers are not liable. Not that the identical property to which the damage occurred should be consumed, or even ignited, but there must be a fire or burning which is the proximate cause of the loss. It is immaterial how intense the heat may be; unless it be the effect of ignition, it is not within the terms of the policy, The heat of the sun often contracts timber, from which losses occur; but they would not be considered losses by fire. (Ellis on Fire Ins. 273. Steph. N. P. 1079. 11 Petersd. Ab. 18.) Hence in the case of Austin v. Drewe, (6 Taunt. 436; 4 Camp. 360,) it was ruled in the case of an insurance upon the stock of a sugar house, that damage to the stock by the heat of the usual fires in consequence of the accidental mismanagement of the dampers, was not within the policy against loss by fire. Gibbs, Ch. J. ruled, and his ruling was sustained by the court, that if there was a fire it was no answer to say that it was occasioned by negligence or misconduct of servants; but in this case there was no fire, except in the stove where it ought to be, and the loss was occasioned by the confinement of the heat, and not by fire.
Thirdly. The terms of the policy exclude the idea that it was intended to cover damage by lightning when there was no ignition. The words of the policy are that the company will be liable for fire by lightning. 1st. If the company intended to insure against all damage by lightning, it seems strange that they should have used that form of expression—that they had not used the phrase directly, “ damage or loss by lightning.” If the word fire includes in itself lightning, then one of those words was entirely superfluous. It seems obvious to me, therefore, when the parties to the contract make use of the term “ fire by
So also Pothier, in his Traite du Contract d’assurance, chapter 1, under the head of fire, says, “ Les assurers en s'ant tenus, lorsque c’ est par un cas fortuit comme par le feu du ciel ou dans un combat que le feu a pres au vaisseau.” “ The insurers are liable when the vessel takes fire by accident, as by lightnin'g, or in battle.”
In marine policies losses by fire and by perils of the sea are usually specially mentioned as losses for which the insurers will be liable. Among the former is uniformly classed burnipg or fire
We are, therefore, of opinion, that the damage which the plaintiff has sustained is not within the provisions of the policy, and that the defendants are not liable in this action. There must be judgment for the defendants upon the demurrer.
Judgment for the defendants.