13 Haw. 164 | Haw. | 1900
OPINION OP THE COURT BY
These cases were argued together. The facte, except as to the form of the policies, are substantially the same as in the case of Yee Wo Chan & Co. v. The Transatlantic Fire Ins. Co., ante p. 160. The first of these cases is a submission to this court on an agreed statement of facts and is based on a policy for $3000 upon a building at the comer of River and Pauahi streets, several blocks from where the fire originated. The second comes up on plaintiffs’ exceptions from the Circuit Court, Eirst Circuit, and is an action on a policy for $5000 upon the same merchandise as tliat covered in the other Yee Wo Chan & Co. case just mentioned. These cases differ from that in that the defendants rely not only on the defense of “civil commotion” as an excepted risk, which the decision in that case settles against them, but also on the exception of loss caused “by order of any civil authority,” which the policy in that case did not contain. The paragraph in which these words occur is the same in each of the policies now in question and is as follows:
“This company shall not be liable for loss caused directly or indirectly by invasion, insurrection, riot, civil war or commotion, or military or usurped power, or hy order of any civil authority; or by theft; or by neglect of the insured to use all reasonable means to save and preserve the property at and after a fire or when the property is endangered by fire in neighboring premises; or (unless fire ensues, and, in that event, for the dam*166 age by fire only) by explosion of any kind, or lightning; but liability for direct damage by lightning may be assumed by specific agreement hereon.”
It is contended, particularly by counsel for the plaintiff in the first of these cases, that the words “directly or indirectly” do not apply to the words “by order of any civil authority,” but that they apply to the preceding words only. We cannot agree with him. It is true, as argued, that the enumerated risks ending with “usurped power” may be grouped together as implying violence or lawlessness to a greater degree or as being more uncertain as to the extent of their operation than the risk next named, that is, “order of any civil authority,” and it is argued that this indicates a break in thought in the enumeration of these two classes of risks and affords ground for belief that the words “directly” and especially “indirectly” were intended to apply to the first class only; and yet all these risks, including the last, may be classed together as possessing certain common attributes. They are, for instance, all of a more or less public or political nature. It is true also that at first impression the repetition of the words “or by” in the last clause preceding the first semicolon would seem to indicate a break in the thought; and yet “or” would naturally be repeated before the last of a series. It is here repeated even before the next to the last. And it as well as the word “by” is implied where not expressed before every one of the enumerated risks. The insertion or repetition or omission of these words in any particular instance is largely a matter of taste. The punctuation certainly favors the view that all these risks are classified together, for they are all separated from each other by commas at most, and are as a whole separated from what follows by a semicolon. But a controlling consideration is that the words “directly” and “indirectly” are adverbs modifying the word “caused.” I his is time also of the adverbial phrases “by invasion,” &c. These also modify “caused.” The words “directly or indirectly” do not modify “by invasion,” &c., nor was there any intention to distinguish between a direct and an indirect invasion, or direct and indirect riot, or direct and indirect order, &c. That would be absurd. The direct or indirect consequences of these are what
, Whether the words “direct” and “indirect” are synonymous with the words “proximate” and “remote” which are so familiar in the law of cases of this class, we need not decide. Nor need we decide whether it would make any difference in this particular case if the word “indirectly” was not implied with the word “caused” before the words “by order.” For, if the order of the Board of Health was the cause of the fire in this instance, was it not the direct and proximate cause? There certainly was no independent efficient intervening cause between the fire originally caused by that order and the fire which consumed the insured property. But holding, as we do, that “indirectly” is implied before the words “by order,” at least makes a portion of this case clearer than it might otherwise be. For instance, in connection with the argument that the word “indirectly” does not apply to the words “by order,” it is urged that the word “order” implies intention and that therefore the excepted risk was meant to apply only to eases where there was a direct intention to burn the property covered by the policy and that, since the civil authorities in this instance not only intended to bum only particular buildings not including those now in question but also took every precaution and did everything they could to prevent the fire from spreading to other buildings, the buildings in question cannot be said to have been destroyed by “order” of the authorities. But when it is considered that the exception covers loss caused indirectly as well as that caused directly by order of any civil authority, whatever force this argument might otherwise have, disappears, “Loss caused * * * indirectly” by order of civil authority is not necessarily merely commensurate with
It is further contended, especially by counsel for the plaintiffs in the second case, that to exempt the insurer, the order must be lawful and that the- Board of Health could not lawfully order the burning of buildings. The language of the policy is “loss caused by-order of any civil authority.” Nothing is said about the order being lawful, -and it could not have been the intention of the insurer in inserting this clause in the policy to make its exemption from liability depend on the solution of nice questions as to the lawfulness of the orders of the civil authorities. We do not mean to say that the insurer would be exempt in every case in which a person or body possessing civil authority might set fire to a building. In most cases if a person should cause another’s building to be burned, he might be taken to have acted in his private capacity, and not as a civil authority, even though he possessed civil authority of some kind and purported to act in his official capacity. But it is sufficient when, as here, the civil authority, the Board of Health, has the power under the statutes to destroy buildings when it is necessary to do this for the public health, and in the particular case purports to act in its official capacity and does act in good faith and within the apparent scope of its powers. In such ease the insured cannot under a policy of the kind now in question raise an inquiry as to whether the exercise of the lawful power was justified by the circumstances of the particular case. This is an action on contract against -one who did not cause the loss and must be governed by the terms of the contract. What questions the insured might properly raise in an action of tort against the alleged wrongdoer, though a civil authority, who has set his property on fire is another matter.
- One question remains to be considered. Was the order of the Board of Health the cause of the loss from a legal standpoint?
In Insurance Co. v. Boon, 95 U. S. 117, the insured property was destroyed by a fire that spread from another building which had been set on fire by order of the Commander of the United States forces to prevent the rebel forces from getting the military stores therein, the order having been given when it became apparent that the loyal forces could not hold out against the rebel attack then in progress. The policy did not except loss caused by order of any authority, whether civil or military, but did except loss caused by invasion or usurped power. The question was whether the invasion or usurped power of the rebels or the order of the Commander of the Union forces was the proximate cause of the loss. The Circuit Court held that although the attack was the reason for the order yet the order was the cause, an independent intervening cause, and that therefore the insurer was
Thus there seems to be some difference of opinion as to whether the invasion or usurped power, where loss occasioned thereby is excepted, or the order given by the opposing commander in consequence of such invasion or usurped power, where loss occasioned by such order is not excepted, is the proximate cause of the loss in a legal sense. If the decisions of the United States Circuit Court and the Supreme Courts of Pennsylvania and Virginia should be followed, the order of the Board of Health should be considered the proximate cause and the insurers would not be
“Policies of insurance, like other contracts, must receive a reasonable interpretation consonant with the apparent object and plain intent of the parties. This is entirely consistent with the rule that ambiguities should be construed most strongly against the underwriters, and most favorably to the assured. * * *
“Invasion involved, of necessity, resistance by the constituted authorities of the government, and the employment of its military force. Destruction of property by fire was quite as likely to be caused by resistance to the usurping miHtary power as by the direct action of that power itself. This must have been foreseen and considered when the insurance was effected. It is difficult, therefore, to believe .that the parties intended to confine the stipulated exemption within the limits to which the assured would now confine it. * * *
“It cannot be said that was not anticipated which military necessity recognized. And the insurers and the assured must have looked for such action by the Federal forces as a probable and reasonable consequence of an overpowering attack upon the city by an invading rebellious force. Having excepted from, the risk undertaken responsibility for such an attack, they excepted with it responsibility for the consequences reasonably to be anticipated from it.”
So here, assuming that we must go back for the cause at least
Judgment for the defendant in the first of these cases. Exceptions overruled in the second.