197 Iowa 153 | Iowa | 1924
Plaintiff, as beneficiary, sued to recover on an accident insurance policy providing for double indemnity for the death of her husband, alleging that he received his fatal injuries by reason and in consequence of the burning of a building while he was therein. The clause of.the policy relied on by the plaintiff, so far as material to the issue, reads:
“Or (3) by reason and in consequence of the burning of a building while the insured is therein, provided he was in the building' at the commencement of the fire.”
The defendant company by answer admitted that the policy of insurance in suit was issued; that the insured Leslie B. Hiatt died on or about the 20th day of March, 1921, by external vio
Upon the issues thus framed, two questions are presented on this sippeal: (1) Does the language of the instant policy negative the double indemnity, in that, as contended by the defendant, the contents of a building are not within the risk contemplated and as expressed in the words “by reason and in consequence of the burning of a building?” (2) Did the plaintiff offer sufficient proof that the burning of a building caused the injury and death of the insured, justifying a submission of the question to the jury?
The trial court ruled against plaintiff on both propositions, and with the correctness of the rulings we are now concerned.
On the day in question, the insured was working on an automobile in the garage of one W. W. Kinser, at Promise City, Iowa. An employee of Kinser’s rolled a barrel of high-test gasoline across the cement floor, and proceeded to open it about ten feet from the insured. Whereupon the generated gas and vapor escaped, and upon reaching the 14-foot ceiling, spread out in the shape of a huge cone. In the garage, about 20 feet from the barrel, there was a stove in which a fire was burning. An explosion resulted, which set fire to the contents of the garage, and eventually burned all inflammable parts in and of the garage, Within a minute or two after the explosion, the insured made his way from the place where he was working to the door, being compelled to walk through burning automobiles, to reach the
In Houlihan v. Preferred Ace. Ins. Co. (November, 1909), 196 N. Y. 337 (89 N. E. 927, 25 L. R. A. [N. S.] 1261), the policy issued insured against the effect of external violence and accidental injury “* * * (3) if caused by the burning of a building while the said person is therein.” It is alleged in the complaint that the injury resulting in death was “by means of burns caused by the burning of a building while the said beneficiary was therein.” The appellate division (127 App. Div. 630; 111 N. Y. Supp. 1048) reversed a judgment for defendant entered on a directed verdict, and this judgment was reversed on appeal. The majority opinion holds that the words “if caused by the burning of a building while said person is therein” unmistakably require the burning of a building, either in whole or in part, as a condition precedent to liability on the' part of the insurer. It is said:
“We are not called upon to resolve a doubt in favor of the insured where there does not appear to be any reasonable doubt. * •* * When the contract expressly specifies the kind of accident which it covers, the rights of the insured and the liability of the insurer are measured by the specification. * * * The burning of a building is not the same thing as the burning of articles in a building; and yet it is only by holding these terms to be absolutely equivalent in meaning that the defendant can be charged with liability in this case. * * * If it was the purpose of the parties to enter into a contract broad enough to embrace any accidental injuries occasioned by fire, -it was easy enough for them to do so. We can determine their intent only by reference to the language they saw fit to use.”
In Maryland Cas. Co. v. Edgar (C. C. A. 4th Cir., 1913), 203 Fed. 656, the policy provided for a double indemnity, payable under a clause in the event the insured “shall sustain
“If the parties here intended double indemnity for an injury received in consequence of the burning of the contents of a building, they assuredly have not so expressed their agreement, and we must interpret their perfectly unambiguous contract according to the plain, ordinary meaning of the words used by them. ’ ’
We find but one case which announces a contrary holding in the interpretation of similar language, and it is the case of. original first impression,— Wilkinson v. Aetna Life Ins. Co. (April, 1909), 240 Ill. 205 (88 N. E. 550). The policy provided for double indemnity for injuries sustained “in consequence of the burning of a building in which the insured shall be at the commencement of the fire.” The facts disclose that the insured was fond of archery, and that he made his own targets in the loft of a brick barn which stood in the rear of his house. In the loft were some wooden boxes and some boards used as a bench or table, and a small amount of straw used in the manufacture of the targets. Plaintiff’s intestate went into this loft, and at that time, he had a cigar in his mouth. A little later, there was an alarm of fire, and the department responded. The loft was on fire, including the straw, boxes, and boards. Wilkinson was found lying on, the loft floor, unconscious, and different portions of his body were badly burned, from the effect of which he died, two days later. At the close of all the evidence, defendant made a motion for a directed verdict, which was denied. The defendant offered no proof. It appeared from the evidence that .the floor and the roof of the loft were more or less burned at the time that the firemen arrived, and the inference from this evidence could fairly be drawn that the injuries which resulted in Wilkinson’s death resulted in part from the burning of the building. The court, however, held (which may be considered dictum) that the word “building,” as used in the policy, included the contents of said loft, and said:
“The insured in this case was contracting for indemnity*159 against an accident from fire while he was in a building, and not alone from the burning of a building. ’ ’
This undoubtedly fortified the decision, in holding that the trial court was not in error in declining to take the case from the jury. No other ease involving a similar policy of accident insurance has approved the construction in the Wilkinson case, but, on the contrary, say, “We are unable to so construe the language.” Maryland Cas. Co. v. Edgar, supra.
In Kleis v. Travelers Ins. Co., 118 Minn. 422 (136 N. W. 1101), the court was not called upon to choose between the New York rule, as declared in the Houlihan case, and the apparently contrary rule of the Illinois court in the Wilkinson case; and the opinion so states.
II. The inflammable portions of the building in question were on fire, and wrere burned.
“The doorway and casings around the door were all in flames, and burning. We had to crouch down to get out, and the flames from the door and casings would touch as he (Hiatt) came through. The doorway was all blazing. As he crouched through the doorway, the flames licked down and came across his body.' The flames went against his body—the whole body.”
There is no dispute in the evidence that the doorway was all ablaze as Hiatt made his exit from the building. Another employee in the building, named Warren, testified that Hiatt came through the burning door.
“The flames touched him around the shoulders like they did mine—he had to come through the flames as he .came through the door. When he came out the door, or at the side of the ‘V’ place, the door was on fire, and I think that is where I got part of my burns. I was burned both by the door and as I came between the cars. ”
“I didn’t know that I was burned before starting between the blazing cars. There was just room for a man to pass between the cars. Hiatt had to thread his way through the same maze of burning cars that I had. There was no other place to get out, except between the burning cars. I noticed him when he came out. His clothing was burning when he came out. Hiatt didn’t start as quick as the rest of us did.”
The attending physician of Hiatt testified that he did not smell any gasoline on Hiatt, but that his clothing was burned, and also his flesh, and his burns were deep. There is nothing vague or uncertain as to what portion of the building burned, or the extent of the burning. The question is, Did the burning of the building have a causal connection with the death of Hiatt, and does the evidence in this respect present a jury question"? The evidence offered by the plaintiff must be regarded by the court in the most favorable light toward the party against whom the motion is directed, and the strongest inferences reasonably deducible from the most favorable evidence should be indulged in favor of the party against whom the motion is directed. Stilwell v. Stilwell, 186 Iowa 177. There was a substantial burning of the building. The only question is whether the plaintiff established the burden in proving that the injury causing death was in consequence of that burning.
In Kreiss v. Aetna Life Ins. Co., (1920) 229 N. Y. 54 (127 N. E. 481), it was held that the defendant company was not liable under an accident policy insuring against death “by reason and in consequence of the burning of a building while the beneficiary is.therein.” The evidence disclosed that the clothes of the insured caught on fire while within the building, and that there had been a fire in the kitchen of such building which resulted in the burning of some of the contents of the room, the charring of wall paper, and the scorching of window frames,
“They had no difficulty in getting in the kitchen, as there would have been had there been a fire in the doorway.”
It is said:
‘ ‘ There is no doubt in this case that a portion of the building was burned- — -the kitchen door, the wainscoting, window frames, and the sink board; and the defendant substantially concedes this. But is there any proof from which an inference may fairly be drawn, or be drawn at all, that the burning of these parts of the building caused Mrs. Kreiss to burn?”
Appellant contends that this court can adopt the foregoing statement on the record before us. Cases of-this character afford but weak precedents on the facts, and eách case must bo decided according to its own facts. Plaintiff was not bound to include in her proof the possibility that the accident might have happened in some other way than that claimed by her, as that would impose a greater degree of proof than required in civil eases. We cannot say that plaintiff’s claim has no supporjyjg the evidence. A jury could well find that a person going thr<^^|
In L’Ecuyer v. Indemnity Life & Acc. Co., 97 Kan. 540 (155 Pac. 1088), the only question presented on appeal involved a question of fact whether the death of the insured was caused by an explosion or by the burning of a building, within the terms of the policy. The clause of the policy relied on by plaintiff reads:
‘ ‘ By the burning of a dwelling, hotel, office building, theater, school building, lodge room, club house, store or barn, while assured is therein.”
The plaintiff was filling a five-gallon oil can, and was pump-from a measuring tank of oil. An explosion occurred,
“While it does appear that the building itself was partially burned, it seems beyond question that the explosion of the can, and not the burning of the building, caused the death. Manifestly the decedent was out of the building before the fire had made any progress.”
In Farley v. Aetna Life Ins. Co., 200 Mo. App. 460 (207 S. W. 281), the plaintiff, an electrician, was fatally burned as a proximate result of a sudden flash at a switchboard, occasioned by a short circuit, which threw oil over him, igniting his clothing and partially burning the switchboard. It was held that plaintiff could not recover under an accident policy providing for injuries “by reason and in consequence of the burning of a building while the insured is therein.” On the trial below, the court oñ its own motion peremptorily instructed the jury that, under the law, pleadings, and evidence, the verdict should be for the plaintiff in the sum of $3,750, which denied the double indemnity prayed for. On appeal the judgment was affirmed. Counsel for plaintiff contended that there was sufficient evidence to make a question for the jury to determine whether or not the insured received his fatal injuries by reason and in consequence of the burning of a building. The appellate court assumed, without deciding, that the switchboard is to be regarded as a part of the building, and also stated that the evidence shows that various metallic portions of the switchboard were burnt or melted by the intense heat developed by the electric current. It was not prepared to say tlxat this constituted a burning of the building, within the intendment of the policy, but it held squarely that there was no evidence whatever to show that Farley’s injuries resulted by reason or in consequence of any burning of the building, and further said:
“If any evidence were present tending to show that the electric current set fire to some combustible portion of the building, and that the flames from such burning part of the building were communicated to Farley, the case would be quite a different one.”
In Kleis v. Travelers Ins. Co., supra, the appeal was from an order denying defendant’s alternative motion for judgment non obstante or for a new trial. The only question involved was whether the death of plaintiff’s intestate resulted from one of the risks insured against, to wit, “the burning of a building while the beneficiary is therein.” At the close of all the evidence, the defendant company moved the court to direct a verdict in its favor, which motion was overruled, and the case was submitted to the jury on the theory that there was but one question involved, viz., whether the decedent came to her death “by reason of bodily injuries caused by the burning of a building while she was therein.” Without saving exceptions to the instructions, the case was submitted on the theory “that, in order to justify a recovery, Mrs. Kleis must have died from injuries literally caused by the burning of a building while she was therein, as distinguished from a fire in a building, the building itself not being burned, nor any part thereof; and the only question presented * * is whether there was sufficient evidence to warrant the submission of the case to the jury upon this theory.” The substantial evidence is fully quoted in the opinion, and the conclusion of the court is announced in these words:
“While it is somewhat vague and uncertain as to just what portion of the building was burned, and the extent of the burning, it is nevertheless apparent that there was a general conflagration of considerable dimensions, and we cannot say that there was no evidence of the burning of the building. Under the instructions given, the verdict implies a finding that Mrs. Kleis’ death was caused by the burning of the building while she was therein, and we cannot say that there was no evidence to sustain this finding. ’ ’
We do not consider this case, under the facts, as controlling the case before us. It simply holds that the correctness of the theory as submitted to the jury by unchallenged instructions will not be reviewed or disturbed on appeal.
“Proof shall be made that the building was in the condition of burning by this fire, * * * and if in that accident the assured received injuries, whether from the burning of the structure or from that that was within it, a condition arises that allows recovery.” Further, “If the jury, therefore, finds that this fire in the building caused the structure to ignite — no matter how much ivas burned — so that the structure did burn, that the condition then arose under which the maximum of this policy is recoverable.”
The specific objection and exception to the instruction as given is that it makes the defendant liable under the double indemnity clause of the' policy if the building in which the insured was injured merely took fire in any part, without regard to the question of whether or not his injuries were caused in any degree by the burning of the building or any part thereof. The appellate court held that the objection was well taken, and said that under the evidence there was no causal connection between the burning of the building and the injury.
‘ ‘ In fact, the burning of the building was not even contemporaneous with the injury to Edgar, but followed it. ’ ’
"We conclude, under the record in the case at bar, that the evidence presents something more than a mere surmise or conjecture. It is not a case in which this court can say that the evidence is in equipoise. A fact question was presented, and it was the province of the jury to determine the cause of Hiatt’s