16 Haw. 674 | Haw. | 1905
OPINION OF THE COURT BY
This is an action for $750 upon a policy of fire insurance issued by the defendant upon the plaintiffs’ building situated
On January 19, 1900, the board of health condemned and ordered to be destroyed by fire as infected by bubonic plague all the buildings on the "Waikiki side of a line drawn along that (the Waikiki) side of the Kaumakapili Church premises and extended through the block, in what is known as Block 15, bounded by Nuuanu, Beretania, River and Kukui streets. The fire commissioner to whom the order was addressed passed it on to-the chief engineer of the fire department, who proceeded to carry it out on the following day. Before burning the buildings covered by the order, however, he burned three buildings "in the same block outside of the condemned area on the Ewa side of the line above mentioned and immediately in the rear of the Kaumakapili Church premises. From these buildings the fire spread accidentally not only to the condemned buildings but to Kaumakapili Church and the buildings on the other side in the same block and then from building to building and block to block until it reached the building covered by the policy in question.
The plaintiffs proved the policy and the loss or destruction of the building by fire. The defendant then, with a view to showing that the loss was one excepted by the terms of the policy, namely, a loss caused “by order of any civil authority,”" introduced evidence tending to prove the order of the board of health and that the fire was started in pursuance or as a result of that order. The plaintiffs in rebuttal then attempted to show that the loss was not caused by the order of the board by showing (1) that the fire was started outside of the condemned limits and in a building or buildings not covered by the order of the board and not reasonably required to be burned in order to»
In the case above cited the plaintiffs took the position that the mere fact that the fire was started outside of the condemned area was sufficient to. show that it was not caused by the order of the board of health, but the court took a different view and held that, under certain circumstances at least, the fire might have been caused by order of the board even though it was started outside of the limits of the condemned area, as, foi instance, if the burning of the three buildings outside of that area was reasonably necessary or reasonably supposed by the chief engineer to-be necessary to prevent the spread of the fire to other buildings that had not been condemned. The plaintiffs now, conceding the correctness of that conclusion, contend that the court did not in that case go any further, and should not now go any further, than to hold that the burning of the outside buildings should be considered as caused by the order of the board only in case the burning was reasonably necessary or reasonably supposed to be necessary to prevent the spread of the fire to other buildings not ordered to be burned. The defendant, on the other hand, contends that the former decision went so far, and that the court should now go so far, as to hold that the burning of the outside buildings was caused by the order of the board if the chief engineer acted in good faith in burning them, whatever actuated him, as, for instance, even if, as the plaintiffs contend, he burned them under the erroneous impression that they were within the condemned area or that the order of the board included the entire block in which these buildings were situated or if he burned them merely for the purpose of
The court did not attempt in the former case to state exhaustively the circumstances under which the burning of the outside buildings might or might not be considered as caused by the order of the board. Por instance, it stated that, if the chief engineer set fire to these buildings not- in execution of the order received but to gratify ill will, the order -would not be regarded as the cause of the fire, but it did not hold conversely that anything whatever short of that would make the order the cause of the fire. It held that at least one thing short of that, namely, reasonable necessity, would produce that result. Again, it expressly declined-to state what the result would be if these buildings were burned by mistake on the supposition that they were within the designated area. It did not even state that the order of the board would be regarded as the cause of the fire if the burning of these buildings was reasonably necessary to execute the order aside from the question whether that was reasonably necessary to prevent the spread of the fire to other buildings. The reasonable necessity that was held sufficient to bring the fire under the order of the board was stated with reference to either the spread of fire alone or the execution of the order and the spread of thejfire at the same time conjunctively. Theoretically it might be sufficient if the burning of these buildings ■was reasonably necessary for the execution of the order irrespective of preventing a spread of the fire, although it is difficult to conceive how there could have been such a necessity in the present case.
If the buildings outside the condemned area were burned by mistake on the supposition that they were within the portion of the block that had been condemned or that the entire block had been condemned and ordered burned, the fire could not be regarded as caused by the order. The order in such case would be merely an occasion, not the cause of the fire. It would not be a causa causans that rendered that fire necessary, nor would that
The principal exceptions involving these questions are those numbered 6, 8 and 9. Exception 6 was taken to the giving of defendant’s requested instruction 18, which was as follows:
“If you believe from the evidence that the chief engineer of the fire department started the fire in a building outside of the boundary line laid down in the order of the board of health in good faith with a view to prevent the spread of fire, or for the*680 purpose of making room for the firemen to work in, in executing the order, I charge you that the order of the board of health should still be regarded as the proximate cause of plaintiffs’ loss and your verdict should be for the defendant, unless you find from the evidence that the spread of fire was caused by an unusual and extraordinary wind.”
The objection to this is that it makes good faith alone sufficient, even though the burning of these buildings was merely with a view to prevent the spread of the fire, whether it was reasonably necessary or reasonably supposed to be necessary for that purpose or not, and, worse still, even though it was merely for the purpose of making room for the firemen to work in in executing the order irrespective of the purpose of preventing the spread of the fire by enabling the firemen to control it and irrespective of whether the making of room for any purpose was reasonably necessary or reasonably supposed to be necessary or not.
Exceptions 8 and 9 relate to the question of mistake — exception 8 being to an instruction to the jury that there was no evidence of a mistake and that the jury should disregard the argument of plaintiffs’ counsel upon that point; exception 9 being to the refusal to give the plaintiffs’ requested instruction to the effect that if the chief started the fire in the ouside buildings by mistake the fire was not caused by the order of the board. In view of what has already been said it will be unnecessary here to do more than point out that there was evidence to go to the jury on the question of mistake. It was undisputed that the buildings were in fact outside of the condemned area; one witness, the engineer and foreman of one of the fire engines, testified that they went out that morning to burn Black 15, that that was the order he got from the chief, that the chief came down the afternoon before and told him that they were going to burn Block 15 and would first burn the Waikiki half of it and that they had orders to burn Block 15 and that they had decided to start right back of Kaumakapili Church and burn out those buildings first, and that the common way of working at previous similar fires had been to go into the center of a con
While not strictly necessary for present purposes, since a new trial must be ordered upon the exceptions already considered, we will nevertheless pass briefly upon the questions presented by several other exceptions, witli a view to preventing them from arising again on the new trial.
Exceptions 10 and 11 were taken to the refusal of the court to give plaintiffs’ requested instructions 5 and 6, to the effect that if the chief of the fire department started the fire in the buildings outside of the condemned area, knowing that such buildings were not covered by the order of the board of health, or not knowing whether they were so covered or not but disre garding or neglecting to examine carefully or follow the terms of the order, and acting on his general belief that such buildings would be condemned and ordered to be burned in the near future, if not already condemned, then the fire was not caused by the order of the board. We find no error in refusing these
Exceptions 1 to 5 inclusive relate to the admissibility of what were introduced as minutes of the board of health for the purpose of proving the resolution of the board condemning the buildings within the area above described and ordering their destruction by fire. It was held in Ahana v. Ins. Co. of North America15 Haw. 638, that these minutes were admissible in evidence and there is no occasion to go over that ground again. It is contended, however, that certain objections are made now to the admissibility of these minutes that were not made in that case. Eor instance, it is contended that the book containing the minutes of the board contained some other matters also, as, for instance, a note at the bottom of page 189, which the trial court excluded as not being a part of the minutes. It is contended that the so-called minutes of the meeting at which the resolution in question was adopted and which are set forth on pages 145 to 159 inclusive are of the same character and more particularly because these minutes are not headed substantially in the form “Minutes of a meeting of the board of health,” as is the case with other minutes in the volume, and because in the minutes of a subsequent meeting found on page 377, which contain an approval of the condemnation proceedings in question and of minutes of other meetings covering a period of several months, the board itself distinguished between minutes of such other meetings and the condemnation proceedings, thus indicating, as it is contended, that the board itself did not consider the statement of the condemnation proceedings as minutes of a meeting of the board. In our opinion the statement of the condemnation proceedings were minutes
It is further objected to these minutes that the meeting in question -was a special meeting held in pursuance of a resolution passed the day before to visit Block 10 and that it does not appear that any notice was given to absent members of the board, who might have been interested in Block 15, now in question, and other blocks that were acted upon at that meeting. This objection -was practically passed upon in the Ahana case above cited, for there one of the objections was, not indeed that no notice was given to absent members as to other blocks than Block 10, but that no notice of this special meeting was given to such members at all. It was held that -whatever might be the conclusion in a proceeding as between the board and one affected by its action the minutes -were admissible in an action like the present. It may be added that there was evidence tending to show that this was a full meeting of the board, in which case, all the members being present, no special notice was required.
Exception 7 was taken to the giving of defendant’s requested instruction 20, as follows:
“The burden of proving with a preponderance of evidence that an unusual and extraordinary wind intervened and caused the spread of fire is upon the plaintiffs. Unless this burden has been sustained by the plaintiffs, you will find the fact against their contention.”
Exception 12 is abandoned. Exceptions 13 and 14, taken to the verdict as contrary to the law and the evidence and to the overruling of a motion for a new trial based on that ground,
The verdict is set aside, a new trial ordered and the case remanded to the circuit court.