City Fire Insurance v. Corlies, 21 Wend. 367

City Fire Insurance v. Corlies

21 Wend. 367 | N.Y. Sup. Ct. | 1839

*369 By the Court,

Bronson, J.

I. There has, I think, been a loss by the peril insured against, within the meaning of the policy. In Grim v. The Phoenix Ins. Co., 13 Johns. R. 451, no doubt seems to have been entertained* either by the court or counsel, that a loss by the explosion of gunpowder was a loss by fire. And in Waters v. The Merchants' L. Ins. Co., 11 Peters, 213, the point was so adjudged. The court was of opinion, that fire was the proximate cause of the loss.

II. According to the terms of the policy, if the building was used for the purpose of storing gunpowder, the contract was, for the time, .suspended. And see Duncan v. The Sun Fire Ins. Co. 6 Wendell, 488. But placing gunpowder with á lighted match in the building, for the express purpose of producing an explosion, which immediately followed, was a very different thing from what the parties contemplated when they inserted this provision in the contract. Whether the insurers are liable for this .voluntary destruction of the property, is a question yet to be considered., But I think it quite clear that they have not established the allegation that the building was used for the storing of gunpowder.

III. The building containing the goods was destroyed by order of the mayor of the city, for the purpose of arresting the progress of a conflagration. Are the insurers answerable for this voluntary destruction of the property ? This question has been presented in a double form—the one supposing that the mayor acted with, and the other that he acted without, authority.

1. Let us first assume that the mayor acted illegally. If the fire had been kindled by an incendiary, it is not denied that the insurers would be answerable. Why are they not then ansWerable, if the mayor acted without authority? The act, though not done for a wicked purpose, was as illegal as though it had been the work of a felon. The answer attempted is, that although the mayor had no authority, yet as he acted colore officii, this is a case of -loss happening by means of usurped power, which is expressly excepted by the policy.

*370It is impossible to maintain that a 'mere excess of jurisdiction by a lawful magistrate, is the exercise of an usurped power within the meaning of this contract. That is not what the insurers had in mind when they made the .exception. It was an usurpation of the power of government, against which they intended to protect themselves. Such was the interpretation given to the same words in a policy as early as the year 1767. Drinkwater v. The London Assur. 2 Wils. 363. The property insured was destroyed by a mob, which arose on account of the high price of provisions ; and the insurers were held liable, notwithstanding a proviso, in the policy that they would not answer for. a destruction by “ usurped power.” ' Bathurst, J. said, those words, according to the true import thereof and the meaning of the parties,- could only mean an invasion of the kingdom by foreign enemies to give laws and usurp the government, or an internal armed force in rebellion, assuming the power of government, by making laws, and punishing for not obeying those laws. -Wilmot, Ch. J. said, the words meant an invasion from abroad, Or an internal rebellion, when armies are employed, to support it; when the laws are dormant and silent, and firing of towns is unavoidable. In Langdale v. Mason, 2 Marsh. Ins. 791, it was said by Lord Mansfield, that these words were ambiguous, but they had been' the subject of judicial determination, that they must mean rebellion conducted by authority—determined rebellion, with generals who could give order's. And. he added “Usurped power takes in rebellion, acting under usurped authority.” Whatever doubt there may have been originally about the meaning of the words “usurped power,” in a policy, their legal import had been settled long bfefore this contract was made ; and we cannot assume that these parties used the words in any, other than their legal sense.

- 2. But the mayor acted under lawful authoritythere was no usurpation of any kind. Whether he had' the-concurrence of two aldermen, as the statute provides, or not, there can be no doubt of his common law power, as the chief magistrate of the city, to destroy buildings, in a case of necessity, to prevent the spreading of-a fire." Indeed, *371the same thing may be done by any magistrate, or even by a citizen without official authority. The Mayor of N. Y. v. Lord, 17 Wendell, 285.

IT. If the mayor acted by lawful authority, it is then said that the property was destroyed for the benefit of the city, and that the corporation (not the insurers) must bear the loss. This case does not fall within the statute charging certain losses on the city, because it does not appear that the mayor had “ the consent and concurrence of any two aider-men,” 2 R. L. 368, § 81; and for the further reason, that the property would have been consumed by fire, if its destruction had not been ordered by the magistrate. The Mayor of N. Y. v. Lord, 17 Wendell, 285. It is said that the corporation is liable at the common law for the acts of the mayor.but no authority was cited in support of the position, and I am not prepared to say, that in a case like this, the doctrine can be maintained. The inclination of my mind is strongly the other way.

But suppose the city is liable, I do not see how that fact can affect this contract. If the insurers pay the loss, they may, perhaps, have an action against the corporation of the city, in the name of the assured, to recover back the money. Mason v. Sainsbury, 2 Marsh. Ins. 794 ; 3 Doug. 61, S. C. But however that may be, the fact that the assured may have a remedy against the city, cannot change or qualify the undertaking of the insurers.

.This leads me to notice a little more particularly the extent of the contract. The company agrees to make good unto the assured all such loss or damage to the property as shall happen by fire. Thus far, there is no limit or qualification of the undertaking. If the loss happen by fire, unless there was fraud on the part of the assured, which is not pretended in this case, it matters not how the flame was kindled. Whether it be the result of accident or design— whether the torch be applied by the honest magistrate, or the wicked incendiary—whether the purpose was to' save a city, as at New York, or a country, as at Moscow—the loss is equally within the terms of the contract. That the insurers intended the general undertaking should extend to every *372possible loss by fire, is evident from the fact, that they afterwards proceed to specify particular losses by fife for which they will not be answerable. Columbia Ins. Co. v. Lawrence, 10 Peters, 507. The exceptions are contáined in the sixth condition of the proposals annexed to the policy. It is unnecessary to recite the clause, because, it is not pretended that this case comes within any of the exceptions, save that relating to a loss happening by means of “ usurped power,” and that point has already been considered.

There has then been a loss by fire. The case falls within the general undertaking of the insurers, and is not affected by any of the exceptions which they thought proper to make to the extent of their liability. We cannot add another exception. The insurers are bound by their contract.

. Judgment affirmed.