193 Iowa 221 | Iowa | 1922
— On April 1, 1919, the defendant corporation, carrying on a business of boiler insurance, issued to the plaintiff a policy by the terms of. which it agreed with the insured that:
1. Insurance: construction: boiler insurance with exception of “fire” loss. “If there shall occur within the terms mentioned in Statement 8 of said schedule [hereinafter quoted] an explosion, rupture, or collapse as hereinafter defined of one or more of the boilers, vessels, or other apparatus described in Statement 6 of said schedule, then the company will indemnify the insured by paying to or for him up to a total amount not exceeding that stated in Statement 10 of the said schedule, for each such occurrence. ’ ’
The promise is followed by an enumeration of “conditions,” of which the following only have any bearing, upon this controversy :
“3. The company shall not be liable under this policy for (a) any loss or damage due to fire, or if the explosion, rupture, or collapse is caused directly or indirectly by fire, or * * * (e) If loss or damage is caused by 'mere cracking or fracturing of any part of the cast-iron boiler hereby insured without a specific premium paid for such coverage.”
Following this is a series of ‘ ‘ definitions, ’ ’ as follows:
“(a) ‘Explosion’ or ‘rupture’ shall mean a sudden substantial tearing asunder of the boiler or any part thereof caused solely by the pressure of its contents, (b) ‘Collapse’ shall mean, a sudden crushing or forcing inward of the furnace or the flues or any other parts of the boiler caused solely by pressure, (c) ‘Boiler’ shall mean any vessel described by Statement 6 of the schedule and which is subject to internal pressure and shall include safety valves, steam and water gauges and all connecting pipes and fittings up to and including the valve nearest the vessel.”
The schedule frequently referred to in the policy is entitled “Schedule of Statements,” and, so far as material upon this appeal, they consist of statements of (1) name of the insured;
On March 3, 1920, and while the policy was still in full force, the plaintiff alleges that the boilers so insured were damaged and destroyed by rupture, collapse, cracks, and fractures, to the injury and loss of the plaintiff to the amount of $2,900; and that defendant, upon due notice and proof of loss, neglects and refuses to pay the promised indemnity. Answering this claim, the defendant admits issuing the policy in suit, but denies there has been any loss or damage to the insured property for which it is under any obligation to indemnify the plaintiff. It further pleads that, by the terms of the policy, loss or damage due to fire is excepted from the risk insured against, and that the loss or damage for which plaintiff demands recovery was, in fact, due solely to fire.
For the trial of these issues, a jury was impaneled, and testimony offered. At the close of the evidence, the court directed a verdict for the defendant, and plaintiff appeals.
On the part of the plaintiff, the evidence tended to show that the boiler in question was located in a room or excavation under the sidewalk adjacent to the plaintiff’s bank building. It was of a down draft, low pressure type, made to withstand a pressure of 15 pounds, but in actual use, was never subjected to a pressure of more than 5 pounds. The weather on the- day of the loss, March 3, 1920, had been mild, and only a low fire had been maintained. One Hotchkiss was the custodian of the building, and had the immediate oversight and care of the heating apparatus. He had served in that capacity five years. It was his custom to leave the building about 5:30 P. M., returning again about 9 P. M., to bank the fire for the night. Before going to his supper on the evening in question, he attended to the fire in the usual way, and threw in some coal. At the same time he looked at the gauge, and found the water standing at the proper height of an inch above the water line or mark. It should
For the defendant, an expert witness testifies that, three days after the loss, he made careful examination of the boiler, and did not see any evidence or signs of fractures or cracks at that time, but did find evidence of the melting and burning in the water grates, and of parts of the sections “around where
“I would say that the cause was nothing more than a dry boiler. If the blow-off valve was open, the water would run out. I could not see but what somebody opened the valve. Somebody just simply opened the valve.”
The foregoing statement does not include all the testimony, but it is sufficient to show the conflicting theories of the parties to the suit. In so far as the case turns upon the simple question whether the boiler was, in fact, ‘ ‘ cracked or fractured, ’ ’ it' can hardly be contended that there was no evidence to take that inquiry to the jury. The vital issue, however, is presented by the defendant’s contention that, whatever may be the truth as to the alleged cracks and fractures in the boiler, the injury so sustained by the plaintiff was “due to fire,” and is, therefore, not covered by the policy.
It may be well here to recall just what indemnity the defendant does promise to its policyholder. The contract recognizes a distinction between loss or damage to the boiler by “explosion,” “rupture,” or “collapse,” and loss or damage caused by “mere cracking or fracturing” of the boiler; and for indemnity of this latter character, a special or additional premium is exacted. Plaintiff’s policy is made to provide indemnity against both of these classes of hazards; and for its insurance against cracks and fractures of the boiler, it paid defendant a premium of $64, and for insurance against explosion, rupture, or collapse, it paid the further sum of $56. To make clear and certain the nature of the risk, the policy carefully defines what is meant by ‘ ‘ explosion, ” “ rupture, ’ ’ and ‘ ‘ collapse; ’ ’ .and it is sufficient here to say that the loss alleged by plaintiff is not covered by either definition. It follows that, if plaintiff is entitled to recover at all, it is under the defendant’s promise to indemnify it against loss by the cracking or fracturing of the boiler.
One other noticeable feature of the policy is the frequent use of the word ‘ ‘ occurrence; ’ ’ and here again the insurer is at pains to carefully define just what that term shall be held to mean, in construing its contract. It says “occurrence” shall mean the “explosion, rupture, or collapse of any boiler;” but,
We now come to consider the effect of that other policy provision which reads:
‘ ‘ The company shall not be liable under this policy for any loss or damage due to fire, or if the explosion, rupture, or collapse is caused directly or indirectly by fire. ’ ’
To bring the case within that exception, it is argued by defendant that the loss was occasioned by exhausting or draining the water from the boiler, and thereby exposing the structure of the boiler to a destructive heat.
Passing, for the present, the question whether this fact, if found to be established by the evidence, would relieve the defendant from liability, it is sufficient to say that the proof is .not so conclusive as to make it a matter of law. That there is considerable testimony tending to support that theory must be admitted; but the negative of that proposition is not without substantial support. Nobody saw, and no one can say from personal knowledge or observation, just when or just how the cracking or fracturing of the boiler occurred. The open “blow-off” valve was not discovered until an hour , or two after the alarm had been given, and after numerous persons had visited
“There are different things which will cause a boiler to crack. It is mostly when the boiler is hot, and you open up the feed valve and let cold water into the boiler. That will crack a boiler quicker than anything else. That is a matter of uneven expansion.”
That east iron will at times crack from a variety of causes, as well as from causes which are not readily apparent or discoverable, is a matter of common knowledge and observation; and we are not ready to hold that even the most competent, expert witness, testifying only from a “post-mortem” examination of a given crack or fracture, and giving his opinion as to its origin or cause, will establish the cause as a matter of law. But even if we assume the absolute correctness of the witness, and accept his judgment that this cracking and fracturing were a matter of uneven expansion of the iron, does it follow that a loss so occurring is not covered by the policy? Defendant contends that it is not, because of the provision of the policy already quoted, which excepts “loss or damage due to fire.” The argument, reduced to simple English terms, is that, if the boiler was cracked, the crack was occasioned by the uneven expansion of the iron; the expansion of the iron was occasioned by heat; the heat was occasioned by fire; and because of this chain of cause and effect, the resulting loss and damage must'be held, as a matter of law, to be “ due to fire, ’ ’ within the meaning of the contract. With this contention we cannot agree. In the first place, the argument so advanced, carried to its logical result, would render the entire contract of not the slightest protection to the insured. It professes, for example, to insure the policyholder against loss or damage to its boilers by explosion,
The appellee, in argument, bases its claim to a directed verdict upon two propositions: First, that the contract is to be construed according to the plain, ordinary, and popular sense of common speech; and second, it is said.that there are no disputed questions of fact presented by the record. With the first rule stated, there can be no serious dispute; but even words of everyday and familiar use are not always used in precisely the same sense. To ascertain the effect of a given word in a given writing, it must be read in the light of its context, of the instrument as a whole, and of' the circumstances attendant upon its use. We think there is no violation of this canon of construction in our treatment of this contract.
“The question for the court is not whether reasonable minds might differ as to which theory was better supported by the evidence, but whether the theory adopted, upon which liability is predicated, is so sustained by the record that a fair controversy exists as to whether or not it is, in fact, the true theory.” Carpenter v. Security Fire Ins. Co., 183 Iowa 1226, 1234.
The issuance of the policy of insurance against cracks and fractures in the boiler being admitted, and there being competent evidence that cracks and fractures did occur, we discover no sound reason for withdrawing the question of defendant’s liability from the jury.
The motion for a directed verdict should have been overruled. For the error in such direction, a new trial must be ordered. The judgment of the district court is — Reversed.