*1 Rockingham, No. Dec.
Joseph Consoli v. Company. The Commonwealth Same Company. The Fireman’s Fund Insurance *2 John Ford and for (by plaintiff. B. brief the orally), Paul (by orally), E. Nourie brief and the defendants. J. The Trial decision of the Court that awas
Kenison,
“friendly fire” and
not
the
is
by
policies
was
covered
fire insurance
supported by the overwhelming weight of
in the
authority
United
Couch,
967,
States. 5
Insurance,
1201;
s.
20 A. L.
68 A.
R.
L. R.
231;
Patterson,
J. S., Insurance,
809;
1016;
45 C.
s.
Am. Jur.,
29
s.
(1947)
411; Appleman,
Cases and Materials
Insurance
5
410,
on
s.
Insurance,
3082. The
distinction
cases make a
between a hostile
fire
is covered
the
by
policy
friendly
and a
fire which is not
the
by
policy. Abbot,
Aleaning
covered
The
of Fire in an Insurance
Policy against
Damage by
Loss or
Fire. 24
L.
119;
Harv.
Rev.
37
264;
Yale L. J.
49
L.
Harv.
Rev. 485. However the entire distinc
284)
tion
(Vance, Friendly
has been attacked
Fires, 1 Conn. B. J.
and one court refused
allow it.
Salmon v. Concordia
Ins.
Fire
(La.
Co.,
App.)
The “hostile has to be as a come used shorthand description of a fire which is A origin. accidental its reasonable position man in the of the insured is barred from recovery under his fire insurance he prevent spread if fails the willfully of a hostile fire. Manter Boston v. Ins. Co., 21; &c. 93 N. H. Patter son, (1947) and Cases Materials on Insurance A reasonable man in the expect of the insured not his policy to cover due to loss a fire intentionally kindled. He no more expect damage produced that heat by from be such fire considered loss due to accidental fire. Limited Mode, v. Fireman’s Fund Ins. 62 Co., Idaho 270. The character of the fire would not be changed by the fact that insured property placed was too close to it. A fire burning in a stove which does not escape is not cоnsidered a hostile fire by covered even though damage results from the heat thereby. excessive caused Lavitt v. County Mut. Hartford Co., 729; Fire Ins. 105 Conn. McGraw v. Home Ins. Co. New of York, 482; Sigourney 93 Kan. Produce Co. v. Me Milwaukee
226 Co.,
chanics’ Ins. Iowa constituted considered excessive heat only The case which Queen Wis. Co., fire v. Insurance is O’Connor hostile Only year last whole have not followed it. recent decisions by causing damage excessivе burners problem overheated oil it and was Connecticut heat was reconsidered Massachusetts fire insurance friendly by fires not coverеd they held that were 105; Spare Falls Ins. 137 Conn. Wasserman Co., v. Glens policies. (2d) Co., (Mass.), Ins. 95 N. E. 547. These Caledonian-American been in and as it has today rule аs it exists cases state the Abington century. v.Way a half for more than States United During 67; Patterson, Law Co., Ins. 166 Mass. Mutual 345, 362. Years, 46 Col. L. Rev. the War been amassed plethora authority that a has Plaintiff concedes *3 erroneous, argues that the is right his to recover but doctrine against contrary a man understand and to what reasonable would unsound argument not devoid of policy fire to mean. This is his insurance rejected has and consistently merit but it been sо some substantial long time, in which construe insurance period so a even states for adoption its against company, the insurance that рolicies strictly judicial legislative more a function than a one. today becomes Cf. county 32, legal right N. H. the of a Grafton, 97 where Cushman against liability negligence for which it was purchase insurance to legislative promptly changed 1951, liable act. Laws c. by not was or not in a fire insurance What should should be standard Statutory legislative question. The policy presents Crichton, a 1951) Policy, (Oct. p. Insurance Journal Eire Insurance Law an in duty а court has the to insurance contract While construe manner, giving free rewrite terms by reasonable it is not to its a a public If meaning poliсy requires a never had. they them light (see 5 interpretation in the of modern conditions different the should the Appleman, 216), policy by be stated judiciаry rather than the after the loss Legislature by in advance has occurred.
Exceptions overruled. Lampron, JJ., dissented; the Blandin others conсurred. im- dissenting: The in this state from time J., law Blandin, a that insurance means reasonable memorial has been an what it meant. person position in tbe of the insured understand would 182, cases cited. Here the Company, Terrien v. N. H. the company pay that the defendant would insured policy provided dаmage” loss or fire “any property “by originating for to his from foreign riots any except invasion, enemies, commotions, civil cause military usurped power (Emphasis supplied). . .” or or . . It difficult, company promise pay be if for impossible, not for plainer any nothing here in terms than loss thesе. There is the policy excluding losses due to fires” or fires restricted “friendly place they to the are of the supposed anything where to bе or sort. any suggestion only Nor is there “hostile that losses caused fires” by are covered. The insurer wrote and could have inserted these conditions and as exclusions well as those which it did insert
had it so desired. disputed
It not seriously is here that a reasonable man in the position .of the insured would understand the policy covered the spite losses, but this he recovery, although is denied is there authority state, legislative no in this judicial or doing, so because jurisdictiоns in other courts have established a which it rule seems in fairness and reason neither opinion nor other authorities convincingly I recognize defend. that supported a doctrine by the majority as is the “friendly doctrine be lightly not overthrown. But uphold even authorities which it apologetic, аre and notwithstanding number, their none of them have come forward really good reason with for their appears it ais —which strong indication that nоne exists. The rule has been attacked with *4 vigor logic even overthrown Salmon elsewhere. v. Con (La. cordia Fire Insurance App.) Co. 340; also, Vance, So. see Friendly Fires, 1 Conn. B. J. 284. Our courts have held that the reason for a rather rule, than the jurisdictions of number support it, should control. Therе seems more justice no in cause or logic to road into this policy the “friendly exception than there was to read in a “friendly vehiclе” exception in the liability in Golding-Keene the case of Co. v. Co., 96 N. H. 64. There were we confronted with the argument same here, as and we rejеcted it in no uncertain terms. Id., 68. We are not faced with precedents adverse inas Nashua Trust Co. v. Mosgofian, 97 N. H. 17, but rather precedents our would suрport plaintiff’s all verdict here. It seems me in denying recovery opinion very does the thing which it says cannot be done. It does rewrite giv ing it a meаning which it never had under our law because our law the in- man in the of interpret it as the reasonable coverage hold that exists.
sured and would оver- deny recovery and believe conclusion, In do not we I 'foreign for a principles in our law rule one the fairest and best of to cоmmend justice or reason way has little of doctrine which Legislature for the any good I reason to wait it. Nor do see tenor by following the merеly do ourselves do what we can line our own decisions. hitherto unbroken long and- opinion. J., concurred Lampeón, Hillsborough, No. 4073. Dec. H. B. Jr. v. Gardner Cragin,
Kenneth Sabine. *5 (Mr. Doyle Doyle Leonard & Leonard and Robert J. orally), plaintiff.