10 P.2d 943 | Colo. | 1932
THIS action is based upon a policy of insurance issued by the defendant corporation insuring, "against all direct loss or damage by fire," the household and personal effects, furniture, clothing, etc., of the insured and his family to an amount not exceeding $600. The issues joined by the amended complaint, the amended answer and the amended replication are, as stated by the defendant in its brief: (1) Whether or not there was a fire such as is contemplated by the policy of insurance; (2) if there was, whether or not the evidence as to the damage and other conditions precedent required by the policy, were waived. These issues in their reverse order.
[1, 2] 1. Counsel for defendant company says that since the plaintiff alleged in his amended complaint performance of the conditions precedent in the policy, and proved, or attempted to prove, waiver, there can be no recovery. In Southern Surety Co. v. Farrell,
[3] 2. The important question in the case is whether there was a fire in the plaintiff's house which caused him damage. The insurer relies largely upon the general rule enunciated by the Supreme Court of Iowa in the case ofHanson v. Le Mars Mutual Ins. Ass'n,
The insurer here contends that the evidence in this case brings it within the doctrine announced in the Hanson case. The essential and material facts in this record are in the main fairly thus condensed in the insurer's brief: On a certain Sunday in the year 1928, the insured's wife placed a chicken, weighing five or six pounds, in an aluminum vessel upon an electric range to be cooked, and the range was turned on "high," and thereafter some friends of the insured's family requested him and his wife to accompany them on a pleasure excursion, which they did, leaving their home in the late forenoon of the day, with the range still on "high," in which condition it remained until they returned some time in the late afternoon of the same day, during which time the chicken was completely consumed and, as all windows and doors of the house were closed, the contents of the home, including the fixtures, furniture and wearing apparel of the insured and his family were damaged by smoke and soot, which constitutes the basis of the latter's claim for damages. The insurance company says that there was no flame from this burning range and, so far as the testimony discloses, there was no actual fire outside of the place where it was intended to be, although it increased in intensity and the fire, or alleged fire, was at all times confined to the place, that is, to the range, where it was originated and intended to be confined, hence, as a conclusion from these facts, there was no direct loss or damage by fire and the judgment in plaintiff's favor was not sustained by the evidence.
It is unnecessary further to cite cases relied upon by the insurance company as most of them are to be found in the notation to the Hanson case. We may, however, refer to Gibbons v. German Ins. Sav. Inst.,
There was evidence in the case under review, which the trial court evidently believed to be trustworthy, that the damage to the property covered by the insurance policy was caused, not by a fire while burning in the range in which it was intended to be confined, but by a fire that escaped from the range and after its escape actually burned the floor and walls of the room in which the range was standing. Although there was no direct testimony by any witness that he actually saw a blaze, and there was no person in the house when the fire escaped, nevertheless, the court was justified in finding that an actual blaze or fire escaped from the range and burned holes in the floors and woodwork and walls of the room in which the range was situate, and that the smoke and soot that settled upon the furniture and fixtures and wearing apparel of the plaintiff and his family were the result of what the law books deem a hostile, rather than a friendly, fire. In other words, the judge of the court, sitting as a trier of facts by consent of the parties, found as a matter of fact that the smoke and soot which caused the damage to the plaintiff's property was caused by a fire that escaped from its original and proper place and burned the floors and walls of the room in which the range was located. In Coryell v. Old Colony Ins. Co.,
Judgment is affirmed.
MR. CHIEF JUSTICE ADAMS and MR. JUSTICE ALTER concur. *529