Cook v. Continental Ins. Co., 124 So. 239

1G2 (124 239) principle not include So. it does mind pre- in mistakes” COOK v. ministerial INS. CO. CONTINENTAL “clerical paring defendant served on to he (3 846.) the list Div. prejudice they apparently do not Supreme Court of Alabama. Nov. 1928. Appeals rights. opinion the Court an or- make court did Rehearing that the circuit shows June 1929. Further Granted respects pursuant Rehearing tQ der in all Denied Oct. open Oode, drew in of section appropriate jury num- box order, jurors in his directed ber of to the sheriff a further order to issue caused to summon them all to appear. The statute provides “must the court further jurors drawn all the a list the names of set, week which the trial section, provided to- in this drawn as those gether indictment, copy to be with a There the defendant.” forthwith served on ir- an error have been was not shown to per- regularity in order of the court venire, taining manner of draw- legal was therefore it. The venire only respect. every is with trouble copy think on We served defendant. indulged the inference that facts opinion of the Court stated allegation Appeals, in of' or con- the absence contrary, clerk, tention to the copy making of the venire service defendant, two confused the names of the stating name men and a mistake in made drawn, Rutledge. had been of Elmus summoned, He Drink- and was attendance. drawn, summoned, and had not ard been But, apparently attendance. may be, however, if defendant had objected successfully desired, have hé could striking the true without list Drinkard, juror it, name since known of fully by his to have he'seems motion before the facts this connection proper jury. beginning rem- to strike pointed edy Zini- that effect is out Oases, Edgar supra. If defendant 11am the name of further time consider needed juror, Rutledge have as a he should asked list constituted no defect it. error in- the merely venire, defect copy on defendant. This could of it served post- easily the trial corrected and justice required poned a reasonable time if requested. defendant so no court committed We conclude quash refusing per- error reversible fectly legal venire, ruling no considered Court connection was Appeals. Finding Appeals with what we think is a accord proper of our statutes' and de- construction petition cisions, for certiorari denied. denied.

Writ ANDERSON, J., and C. concur. GARDNER J.,J Cook, Atlanta, Ga., J. Carter and Stein- er, Weil, appel- Montgomery, Crum & lee. Rives, Hill, Hill, Whiting, Thomas Montgomery, appellant. SAYRE, Appellee appellant’s J. property against damage by loss or fire. The is said have been By the standard form. appellant “against by fire, except its terms it insured all direct loss or provided.” as hereinafter A expressed later in this lan- guage: “This will not he liable for indirectly by invasion, or insurrection, military riot, commotion, civil war or usurped power, order of authority; by theft, by neglect civil of the insured to use reasonable means to intervening preserve discloses an force started and and after save and by working independent endangered property.- from a new source. a fire or when the fire in ensues, and, evidently, parties, having mind, (unless neighboring premises; fire But raised, un some such dertook, by as that here way specific exception, only) further kind.” appellee definition of the assumed progress A in and had consumed fire was (omitting parts in this wise immaterial to this by being many buildings blown and was inquiry rearranging parts in a and material appellant’s of in the direction wind When it orderly fashion): company more will Truck had the International reached directly indirect be liable for loss caused Company’s building Bibb and corner of on the ly by kind unless fire of streets, diagonally across which was Coosa and, damage for the prop- appellant’s intersection from the street reasonably only. This clear to department erty distant, feet and 150 liability on the conclusion that would exclude city Montgomery, awith' view of of part appellee of facts the shown likely state flames, limiting spread a of the Most evidence. the -uncontradicted dynamite exploded charge under to be question it was form now cast company’s building. The concussion truck in order to meet some decisions which appellant damage claims caused the which companies surance all were held liable for compensation policy. no There under the by explosions to of incident damages by In the combustion. claim for any rate, fires. At the New York Court gen- defendant, appellee, had the trial court Appeals, considering in terms identi charge. eral question, cal with those wrote and now in so ques undisputed; The facts are held, and the insurance liability court. tion of is one thereby liability relieved from for all loss appel presented law is whether indirectly by explosion caused any damage loss was a “direct loss lant’s necessarily, therefore, kind and from a be contract fire” loss concussion caused par parties. tween the ties must intention neighboring building, whether the clear, prevail. If the courts brought lighted fire, match, about change the contract have no any particular just or other to, cause. the case now referred (Day Co., 177 Ins. v. Home the fire which caused the fell 652); 607, 549, [N. S.] Ala. 40 R. A. 58 So. within the class of “hostile fires” mentioned doubtful, mean to that the court will lean by appellant in her brief. Hustace v. Phenix remaining, ing most favorable to the Co., 292, 592, Ins. 62 175 N. 67 E. L. R. N. however, all times within the terms at A. 651. say: provi contract, “Where the is to The authorities which with deal reasonably indemnity sions of a policies under like that here under consider susceptible constructions, consistent of two imposed ation hold that none is as are here in facts such object obligation, one favora Fire evidence. Westchester assured, other adopted and the favorable ble 186, Bell, 191, 151 E. 13 Ins. Co. v. 106 S. Ga. assurer, that will be 880; R. A. L. Hustace v. Phenix Ins. su assured.” Travelers’ favorable to the pra; Co., 224 Bird v. St. Paul F. & M. Ins. 909; Plaster, 610, Ill Ala. 98 So. Co. v. 210 S75; 47, 86, N. Y. N. E. A. R. Heuer 13 L. 120 Mo Ins. Exch. Southern inois Automobile 393, 144 Ill. v. Northwestern National 429, 265, A. L. tor 207 Ala. 92 So. Sales 594; 411, Fire E. 19 L. R. German A. authoritiesi cited. R. Roost, Ins. Co. v. St. 45 N. Ohio against “direct here contracted Rep. Am. St. 36 L. A. words, damage by fire.” In other their loss or Cooley’s (2d Ed.) Briefs on Ins. 4955—4961. contract Affirmed. cause, re as used in different fire. Proximate lations, provoked has much discussion. JJ., BROWN, THOMAS, Hann, 201 in Western Assurance Co. v. concur. approval 78 So. Rehearing. On Lynn Co. v. Meriden Fire Gas Mass. BROWN, J. This is action on Rep. follows: Am. St. insurance, whereby in- of fire defendant plaintiff’s building, mo- efficient cause that sets “The active sured the referred brings building,” about of events which tion a train the evidence as “Goree-Norris by fire, “against force the intervention of without loss or result direct actively working started, provided, cept a new amount to an as hereinafter source, forty-five independent exceeding is the direct hundred and not Dollars.” and proximate no/100 cause referred to the cases.” , enough might dis- The- facts are conceded to be without to settle That definition purposes pute, appellee’s favor, controversy hand and for the originated 4,1927, dynamite On June a fire to be: circumstances stated stated use streets, during progress fire, city Montgom- district of the in the business department pur- ery plaintiff’s building, city, for the the fire pose dynamite pany’s some distance from explo- checking charge strong wind, fire, and fanned before the exploded charge dynamite de- to be under com- sion the fire the truck of a fire, building, partment checking had the concussion a means east, explosion plaintiff $618.- the 76, suffered a hundred feet toward traveled several everything consuming- path, in in this action. in its width she to recover seeks feet, plaintiff’s building, The evidence is clear to the conclusion that about 300 dynamite caught path time had in the direct necessary sparks the the automobiles to check from inside the times. Two several burned, and as the result of brought top pole, telephone within 20 fire was control located burning. building plaintiff’s building, burned saved from had been of the off. Goree-Norris occupied Spencer, the The witness who appellant’s now is contention that building, testified, to explosion was a mere incident of the fire record, at the time “that thereby within was top of the Goree-Norris he of the roof was policy the hazards direct as a * * * building; explosion time that at the fire. raging wind were contention, appellee’s prevailed building; kinder toward the Goree-Norris trial, on the is that the loss suffered building caught fire on that the Goree-Norris plaintiff clearly exception is within the em- top; explosion; that it was on fire before bodied in the that: to the effect “This top building putting it that out; times; put was he Company shall not be liable for loss caused caught that it had or at least five six directly by invasion, indirectly or insurrec- there; blazing up it that was he that tion, riot, commotion, military civil war or or hose; it out awith was so hot on that it usurped power, any or order civil top face; blistered his that there authority, by theft, by neglect building; were automobiles in the that two to insured and all use reasonable save means to caught building automobiles preserve property at and after tops off; were was burned that this endangered by fire or is when just building on the inside of the and was be- neighboring premises; (unless explosion; raging fore the that fire was ensues, and, in that for explosion; the time of the after the by explosion only) (Italics hind.” plosion out, just it looked like the whole fire went supplied.) just dropped down where the exception, The construction of this embod- building was. This had and be- two walls. That insurance, ied has the standard of fire fore the at the time controversy, of much leaping the fire was across to the and., appear as will from an examination of building every- leaping Goree-Norris cases, entirely the decided meaning is clear of leaping building where. It was provoked and its construction has dynamited, coming was Norris toward the Goree- contrariety opinion. paraphrase much To building.” provision pertinent, the it of the contract here department testified, Chief Nixon of the fire Company is: This shall liable referring to the International Truck Com- indirectly by explosion loss caused pany dynamited: building that was “It was any hind, and in that just smoking like a tar-kiln and all over but damage by only. ques- event And the fvre * * * the fire hadn’t broke out. tion to templation con- be decided is: Was building never blazed out but it a fire was all parties, entering into this you fact, get over. In couldn’t into the build- contract, liability resulting to exclude ing, anywhere but it didn’t burn there —didn’t friendly par- to the interest up.” blaze designed contract, ties to save the insured to check respect testified, This witness destruction, further to property from building being the Goree-Norris explosions, the direct is to inimical or to it limited hostile taking: “Oh, yes, course Goree-Norris was parties, of both not caused interest too, building the other one fire. up, leaping because the flames were we had adopt language To here everywhere flames and it looked like promulgated: tofore “The intention of the thing burn, going whole if to the parties clear, prevail. 'If must is building (the dynamited) corner one change courts con have no to out, you understand, blazed there is no tell- any particular (Day tract v. Home leaped to, where it would because 549, [N. L. R. 177 Ala. So. just high building, that tall 652); doubtful, S.] will lean to fixing to break out.” most favorable to the appellant’s building however, remaining, is at all times within the located say: Company’s contract, from the International Truck terms of the to on the corner of and Ooosa of indemni- Bibb ‘Where of a 1G6 Y. ty In Wheeler Phenix Ins. susceptible of two construc (N. S.) object 96 N. 1913A, 1297, 38 L. A. tions, gation, obli consistent con- assured, Justices all the one favorable to curred, assurer, the ease of will Hustaee other favorable adopted L. A. N. R. explained, the assured.’ 175 favorable to which is court, Plaster, a divided 210 Ala. decided Travelers’ limited, qualified, and in the Wheeler v. South Ins. Exch. So. III. Automobile Case, exception 92 So. standard ern Motor Sales said, speaking of was there construed. A. L. R. 734.” apparent exception: that a “It the which language of another To state the rule precedes and causes the expec opinion: guide “Our is the reasonable contained not policy embraced ordinary purpose business tation which insures ordinary making con business man when damage by against direct fairly intention, expressed or tract. It is supplied.] [Italics think that Nor we kind’ do inferred, times There are that counts. ‘by explosion intend- words permits go back us to far the law produced agency ed to refer inquiry tracing us events causes. The the different but have reference to intend this contract how far the pow- explode, kinds of material go. contem their ed plation The causes within us Legis- der, dynamite, dust, gas, Had the etc. only us.” concern causes that are the poli- lature, adopting standard of form Co., 224 Fire & Marine Ins. Paul Bird v. St. explosions cy, intended to have included 875). 47-51, 86, (13 E. A. L. Y. 120 N. 87 N. by explosions caused icith ivhich fire from that when among excepted There can be no doubt ensues losses precedes spreads policy it doubtless would of explo building causes an express sured’s sion, and there have That done so terms. such policy is clearly the insurer under the standard not its think is intention we e-vident damage. Eire they liable for Bird v. St. Paul the Co., supra; to limit careful fact Ins. explosions & exception M. Wheeler v. Ins. the a to those 452, Co., 283, R. A. supplied.) 203 N. E. 38 L. (Italics N. Y. 98 ensues.” (N. 1297; Lynn S.) 1913A, 474, Cas with Wheeler Case court cites Co., Ins. 158 Co. v. Meriden Fire Electric approval Valley Miami Washburn v. 297, 35 Mass. 33 20 L. R. A. N. 540; (C. C.) Flip. 664, by 2 2 E. decided Justice Rep. Scripture Mutual Am. St. v. Lowell Swayne States, Supreme of the United of (Mass.) 10 57 Fi re Cush. clause, construing it was 111; Am. Waters v. Merchants’ Louis Dec. “Explosives only in observed: are named con 691). (9 213, 225 L. ville Ins. Pet. Ed. 11 they produced. nection with fires which have exception nothing is There said about them connec And the* absence of an produced risk, liability which have follows when tion fires them. excludes the like by policies wholly in a occurs The on that are silent.” neigh boring Ma & Bird v. St. Paul Fire exception agencies, with hostile The deals Co., supra; rine Ins. Hustace v. Phenix agencies of inimical alike the interest to 175 N. Y. 67 N. E. insurer, “invasion,” “insur- insured and the 651; Great American Ins. Co. of Githens v. “riot,” rection,” commotion,” war “civil Y., Iowa, 243, A. L. N. 207 44 201 W. “military “by usurped power,” “theft,” ; Hann, Assur. 201 R. 863 Western Co. v. authority,” order of civil “fires caused 376, 78 So. 232. imposes explosion,” on insured duty “to means to use reasonable save And, likewise, an ex absence of property at and after fire when the ception hazard, like excludes neighbor- endangered by in a

liability explosives follows when used as ing premises.” stopping spread fire, of such means of being adjudged be mere incident to From these it seems clear considerations water, resulting from use resulting like friend- from the use of prevent chemicals, agencies to ly agencies necessary prevent to spread of Insurance fire. Greenwald v. spread building then' of fire to 1218, 398; (Pa.) 323; Phila. 14 R. § C. raging, danger from whether in it such fire then 342, 434; Joyce C. Ins. § J. § water, chemicals, explosives, was not exception, contemplation of this question cause, The regarded as so must be though question of ultimate involved in the poli- by the mere incidents of the liability, is not involved in the consideration Insurance, City cy. Joyce Fire § exception. question whether or Corlies, (N. Y.) Wend. Ins. Co. explosions not the was here character involved Am. Dec. 258. contemplation within only strongly supported damages resulting excluding liability is not This view for authorities, explosions. but these reason common 1G7 suppose to defendant reasonable will not be liable for that. sense. is not property from the It be conceded insure the and in that in the of this insurer would hazard press narily absence sup- exception recovery same contract could have been had discourage agencies ordi- the whole use as au- fires, extinguishing plaintiffs’ as wa- such thorities referred to counsel used in chemicals, explosives. posi- ter, facts tend to that result. not think that do fallacy plaintiffs. clearly tion will aid the An this case illustrate exception, had not without this general contention. If came under brought fire, might been head under control have afforded ground against recovery, assuming guarded have would but defendant stipula- destroyed, express the evidence warranted that result this liability resulting jury finding, exception, too, general, tion. ing includ- so $4,500. explosions According the evi- have been fire as aswell others.’ would department, the the fire chief of dence fire had by comparison “As the ex- will seen stage use of where the reached the emption clause in that one ineffective, firemen water because consideration, decision, well as as get raging it where it was could not argument court, in which all con- dynamited agency, making with this curred, equally applicable to the clause necessary, dynamite its use the use of the this this and to situation. something over was reduced Briggs only [53 “The Case N. 446] is the $600. precisely point court this given We exemp- to the construction to this Case, to clause, differentiate court in Wheeler’s tion and in that case the followed “In the Hus- Case: from the Hustace explosion; but the said large building corner emption tace Case explosions clause included City of Streets in the Warren and Greenwich fire as well N. Y. others.” drugs York, occupied dealers New chemicals, L. R. A. 651. raged on fire. The -fire contrary. Wheeler Case is to the We explosion a hour and then terrific for half an took chemicals stored syllabus (203 the N. Y. 283 N. E. [96 igniting place of the 'the caused S.) (N. 1913A, L. R. A. 38 wrecking therein, several 1297]): against “When a of insurance buildings, among plain- was that upon grain provides fire company elevator tiff’s, which was across a street located should not be liable for loss ex fifty-seven alley some feet distant therefrom. plosion any ensues, kind fire and in unless The concussion caused hostile fell reason the damage by only, that event for the fire a fire’ explosion. No the preceding causing explosion is not the progress upon plain- the exception embraced in the premises tiff’s occurred no against which insures all dam direct loss or It the therein. in this court that held age by fire, negligent and if or hostile fire plaintiff the a ‘di- loss was not sustained premises exists within the insured and an ex damage by fire’ rect loss or within mean- the only plosion results therefrom under such circum ing bat the a re- ivas stances cause constitute as the fire the and indirect mote concussion explosion merely and the the plaintiff’s building caused the to fall. cidental, upon the becomes liable * ** may opinion It be that in the true resulting for the loss therefrom.” discussing the various eases gist Georgia of the Co. decision court expression there be some that has mis- Bell, Westchester Fire Ins. 151 Ga. case, led trial this the learned 106 S. cites judge concluding opinion in that chief case was and relies on Hustace Phenix Ins. su to limit the decision to careful pra, following expression, found in aft peculiar (Ital- presented case.” facts quoting excep er clause: “The supplied.) ics expressly Company tion states that the shall holding Hus- clear effect not liable for be loss caused or indi explosive protects tace Case is that the clause rectly by explosion any kind, fire fire against liability resulting insurer and, ensues, event, by. in that for plosions, though explosion preceded and only. language unequi explicit following as utterances expression ‘explosion vocal. The use of the opinion taken from in that demon- any explosions kind’ indicates that of more : strate contemplated; than kind one and the “ plaintiffs insist, however, ‘The that an obvious the be is that the fire, and, Company is a there- shall liable loss caused for fore, for to indirectly by directly plosion defendant is liable for the loind an ex reasoning gives whatsoever, a fire. But no force ensues unless fire exception. recovery Company allows event expressly stipulates shall be liable fairly sup- (Italics might explosion.” said be within only, es of and not range apprehension.” Under plied.) of normal case, erred facts of this the trial court clearly hold in conflict This case is directing defendant, and verdict for the Y.N. Wheeler judgment must reversed. error the this S.) 474, (N. Ann. L. R. A. 1913A,1297, Val v. Miami Washburn Cas. JJ., FOSTER, BRICK- GARDNER and weight (C. ley F. C.) foregoing. Justice, EN, Special concur in explo construction as to the A. R.L. annotation American Ins. sion clause. See JJ., THOMAS, SAYRE, Y.,N. Co. of Githens v. Great dissent. supra. sitting. ANDERSON, J.,C. holding in Githens The substance first headnote Case is summarized A. BRICKEN, Special (having been Justice in- follows: “Under according by appointed to the the Governor against suring direct loss explosion all Code). Aft- of section 10274 of un- except kind points er an attentive consideration of the and, dam- in that less fire involved, decision the con- of clusion that have reached only, age by is liable if insurer judgment lower ad- from an division wall across the works case of Marie B. Oook v. Continental joining building and causes Company, Corporation, Insurance should injures insured lifts the roof be reversed. I concur in the and con- explo- although property, no follows rehearing clusion of Mr. Justice BROWN on in this case. where the sion within the property Liverpool See, also is located.” (Tex. App.) case, Civ. involved in Currie contract like L. & G. Co. v. contracts, according other to must be construed S. W. parties. intention inten- That brother, opinion my Mr. The fault tion must found it- document correctly SAYRE, states while Justice self, always object keeping in mind ignores construction, this universal rule of purpose parties sought accomplish rule, Eus- York in of New as did the Court entering agreement into of that character. Case, Georgia Bell Court in tace Case, bar, dangerous pro- In the case at fire of explosive clause most and construes portions raging city Montgom- favorably insurer. ery. It had traveled some 700 from its plaintiff’s building was within If the origin towards the insured danger raging, from hostile zone of the the jeopardizing The flames were insured the which, evidence, fire, question under the was a property. Sparks from fire fire had set this jury, dynamiting of the the and one for the property practically the several to times and building company’s was nec truck destroyed two automobiles in the that were fire, essary progress this the to check the of building. beyond insured fire was the an inde act considered could lawful fighting of the of control available forces intervening pendent break force sufficient to Montgomery working ordinary and ' the of that would relieve the causation chain extinguishing usual means of this fires. To check liability. Thompson &L. from insurer fire, possible and save as much of the R. A. R. Ala. 11 L. So. N. 146; property, property, insured as well as other Aldridge, Dye-Washburn Hotel Co. dynamited department chief of the the 93 So. building. op- building near the insured quote again from F. To Bird Paul eration seems be con- v. St. was successful. It to 52, 120 87, 13 property probably A. L. that M. Ins. ceded other the insured and property put de- “We must ourselves the was doomed to R. 875: valuable building approaching average or struction the resort fast of the owner whose boat the damaged explosives proved use of suc- of a distant ex concussion the dynamite damaged say away. plosion, glass use of let cessful. The us Some mile property extent, pantry the insured insured to bro some ware in his is thrown and down probably that seeks to recover the amount of him never to ken. would occur damage policy. meaning an on the action of that within his of surance, phi A he suffered loss fire. high points This brief statement of the lawyer might losopher persuade ease, or a him that me, it to is sufficient to satis- seems they had, judicial fy he not believe it until he would mind the loss that expect indemnity, policy. of by told him. He would Had the firemen entered course, thing building purpose if fire reached Be insured. a line of -hose expect indemnity, very likely, wetting preventing would bursting of and into it if hand, flames, and, management handling or near at his boat build was his if danger ordinary damaged hose, zone was included of damage experience, sort, policy, apprehend some whether I would this do that it of ignition consequenc- seriously from from the indirect contended such that appropriate trial court in the Wheeler Case in an be recoverable would not action. line of while expression been misled in the Hus of from a some Had the the water force learn, damaged I am tace Case. So far as law able to hose extinguish being of Case still law of to Hustace was used hose opinion embers, sparks New York. the Wheeler Case that am of opinion negligent agree be was or hos insurer would of “that would we liable premises damage. The tile fire exists within the insured under dynamite used, and an such of results instead hose therefrom fact water, to hose and circumstances as to rather in addition constitute proximate cannot, my judgment, water, of cause and the ex- alter case. merely Evidently department, be the chief incidental iffosion experience matters, was loss re man much in such comes liable sulting thing opinion do. therefrom.” The court shows of the The result thus proximate speaks its consideration of in de for itself indicates that cause termining good. meaning judgment was and in his plaintiff suing for the loss dynamite, under the circum- The use explo an stated, my not, opinion, stances an sion within So in Bird v. St. working "intervening force started and from Paul Fire & Marine the Court independent source,” new and more a than would that than working Appeals of York at consider New discourses use of water hose chemicals subject length proximate cause able as icy, intervening an force. Matters of affording pol clew to the kind are incidents of the fire. Rather from case decided being “intervening force started and (Leyland Shipping Norwich House of Lords independent source,” new from Times, Society, F ire 118 Law they might prop- to me be more it seems 125) showing erly agencies classified as lawful utilized in approach to the true method affords emergency to check or break force parties agency parties the intention the in destructive —fire—that entering attempted of insurance. against. into the contract insure must be held to have contem- canal boat was Bird Case plated city fighting Appeals says, against forces of the as the Court Montgomery would, Bays, “Sounds, Harbors, of stances sonable property, the circum- should perils Riv arise, wise, prudent, do Fires, rea- ers, that shall come to the Canals and thing protect this, and all other damage was no ex boat.” “There the said complete destruction explosion.” press they explo is what for. That This is were established cars loaded with facts were that The sives why they public at much caught are maintained fire. The of the cars contents expense. therefore, fire, Whenever explosion,” quote again causes exploded. “This damage property in Appeals, those forces to an effort preserve destruction to ensuing turn! another “caused another and damage, me, greater loss or it seems of a much fire,” dynamite explo well large “direct loss quantity of insurance, yard. within the terms of the and freight The last ex stored in the sives exception, as air, not within the therefore plosion a concussion of damaged contended. one thousand vessel about No fire $675. extent distant solely vessel, damages being reached the SAYRE, Judge opinion, BROWN’S J. by from the concussion caused the second general propositions aside from and irrele Appeals plosion.” used this . In the Court of conclusion vancies, supposed authority invokes the language: case, “In this the facts Phenix Wheeler v. N. Ins. 208 N. Y. disputed. be drawn are not The inferences to (N. S.) 474, A. damage1 from them not doubtful. are 1913A, and Bird v. Paul Fire Ma St. meaning by fire within the not loss rine Ins. N. Y. policy.” A. L. R. 875. There is no use to refer to Valley (C. policies differently In Washburn v. Miami Ins. Co. eases in which were C.) explosion consequences 2 F. It worded. supposed avoid the were building, policies in Wheeler Case. to flow the same in from such as was the fact standard adopted. in this case—was —the Judge Reference is made BROWN’S following The Wheeler Case to be to to the annotation the case is said the con- trary Bell, Ap- of Westchester Fire Ins. v. L. Hustace Case. The 13 A. peals quote appear page I New York R. 883. provision the text on “The does not to think 886: so, policy excepting nothing for it has said: -of “There the standard is by explosion [the case with this case.” And then is to Case] Hustace which is loss the effect that conflict expressed caused, views that we have in insurer shall not be liable for di- loss rectly indirectly, explosion any kind, by said the court that the which, explosion cases fire and oc- for dam- those that event unless fire impossi- curring building, age by only.” it was the same different to allocate ble the loss due to the R., page 891 of 13 L. under the And on A. causes, and the insured has been therefore by “Damage explosion neighboring heading allowed, notwithstanding plain terms of following: building,” appears erally held, gen- is “It loss. But the that recover for whole against insures where the entire is case. this case liability by fire, provides against loss only. by explosion loss in suit was caused indirectly by explo- loss caused liable, kind, any is sion of insurer that the BOULDIN, JJ., concur in THOMAS and merely the concus- occasioned losses this view. explosion in another occurs sion of an which although explosion building, was caused (concurring). A rather care- J. citing by Colorado, cases the existence of fire”— rehearing study on has con- ful of the case Louisiana, Illinois, Kentucky, New opinion cor- that the firmed me view others), Ohio, (Hustaee York Cases and rectly states the law of the case. Tennessee. pol- dealing standard We are Joyce page “In Insurance” —I terms, icy. general coverage, is are 884 of 13 L. R.—“it is said: liable tion ‘Insurers damage limited to This is followed loss fire.” “direct upon a condi- contains among exceptions, e., excepting nature [i. of this * * * “explosions are fire kind damages by explosions kind] where ensues, and, in that for the dam- premises originates in fire the the insured and ages only.” from fire destroys produces explosion damages solely here from concus- property. in such a The entire loss case sion, explosion, extending an incident of the 3, p. 2532.” held to a loss fire.’ Vol. is point explosion in all directions says: “Again, author ‘If combus- -this upon depending distance its violence. inseparably con- are tion nected’ contention, main one which the note, as, I case Wheeler ”— seriously considered, has writer is Co., and v. Miami Washburn fighting oper- was in course of fire Valley Co., supra, and, think, I department, designed ations the case Githens Great American Ins. spread conflagration endanger- check the aof Iowa, 266, 207 N. W. 44 A. R.L. property, including much the insured against has cited as original opinion in the case the this the now before law is from the use of court— n “‘if a combustible substance extinguishment water or chemicals flames process produces explosion of combustion regarded are incident to the also, agent throughout, and fire is the contemplated as beneficial to both insur- is a both there is policy fire and part er and and are recoverable as held the whole Granting direct fire loss. that as to against insuring p. fire.’ Id. explosives on fire the use comes theory I 2707.” have followed the of the two rule, ques- within the same tion as to the clause as we still face the preceding paragraphs. of this following annotation And Githens applied to this case. American 44 A. R. un- Great I think it the settled law that where a heading “damage der pol- standard fire building,” neighboring the test have icy and an therein is repeated 13 A. L. R. from tional citation with addi- explo- from by fire, adjudicated from Mis- cases part sion the direct loss and Texas. souri recoverable. rule is based In the here under it ground consideration ais mere incident necessary say hardly seem to be would again was no that there claim Yet, case, such the authorities seem to damag'e The claim was for combustion. caused uniformly hold that does not from an in a concussion buildings damaged other extend insured' street, and not otherwise. across solely by explosion. concussion such Without there is of Mr. a direct chain It is stated Justice “explosive causation such ease the fire which BROWN that have set construed n favorably My off loss involved. But clause” most to the insurer. judgment written that such chain of causa- the law is that the unmistakable tion, usually stipulation made the test which was torts, applied outset, possibility actions of is not to be excludes the carefully only recovery by appellant, in provision excluding explosions of this framed the construction and that the of favor courts, indulged a risk un- this or fire-policies. loss, case, no loss ex- der No been in interest of has only plosion incident has heretofore reached insured and pro- given this being construction Sucli vision of the standard adoption, familiar courts its time of re- history purpose, must defining contract, garded law as the differentiating fire insurance plosion insurance. Presumably based now insurance rates legal construction. foregoing. J.,

THOMAS, concurs in the 412)

(124 So. CO. KELLETT MOTOR

STONE (7 904.) Div.

Supreme Oct. of Alabama. Baker, Payne, appellant.

Lee of Ft. S. Payne, Wolfes, appellee. Ft. C. A.

Case Details

Case Name: Cook v. Continental Ins. Co.

Court Name: Supreme Court of Alabama

Date Published: Nov 1, 1928

Citations: 124 So. 239; 220 Ala. 162; 65 A.L.R. 921; 1928 Ala. LEXIS 514; 3 Div. 846.

Docket Number: 3 Div. 846.

Court Abbreviation: Ala.