New York & Boston Despatch Express Co. v. Traders' & Mechanics' Insurance

| Mass. | Mar 3, 1882

Endicott, J.

There is no question that the defendant would be liable on its contract of insurance, if the fire was the cause of the loss of the plaintiffs’ goods. It is fairly to be inferred from the report, that the collision was the cause of the fire; and fire caused by collision is not within the exceptions of the policy.

In order to entitle a party to recover on a policy insuring his goods against loss by fire, it is not necessary that the goods themselves should be injured or consumed by the fire. The insurer is liable for all losses which result from the fire, and can be fairly attributed to it. If the property is injured by water used to put' out the fire, it is within the protection of the policy. Lewis v. Springfield Ins. Co. 10 Gray, 159. City Ins. Co. v. Corlies, 21 Wend. 367" court="N.Y. Sup. Ct." date_filed="1839-07-15" href="https://app.midpage.ai/document/city-fire-insurance-v-corlies-5515333?utm_source=webapp" opinion_id="5515333">21 Wend. 367. Case v. Hartford Ins. Co. 13 Ill. 676" court="Ill." date_filed="1852-06-15" href="https://app.midpage.ai/document/case-v-hartford-fire-insurance-6947780?utm_source=webapp" opinion_id="6947780">13 Ill. 676. Witherell v. Maine Ins. Co. 49 Maine, 200. White v. Republic Ins. Co. 57 Maine, 91. So if it is submerged in water by the sinking of a ship, and this is caused by the fire, it is equally covered, although not burned.

The case finds that the steamboat, having on board the plaintiffs’ goods, was injured by a collision with another vessel. A fire immediately broke out. The vessel was provided with pumps and apparatus for putting out the fire and for pumping out the hold; and one pump was at once put in operation, and had extinguished the fire, when a fire broke out in another place and prevented its further use. The plaintiffs offered to prove that there would have been no loss of their goods except for the fire, which rendered it impossible to run the engine, extinguish the fire, or pump out the water flowing in through the breach caused by the collision; that, for the same reason, it was impossible to take any measures to stop the leak, or to conduct or guide the vessel to shoal water, which was near at hand; or to enable other vessels in the immediate neighborhood to render assistance, either by keeping the vessel afloat or by removing her cargo. The crew were obliged to abandon her. She remained floating and burning, in substantially the same place, for half an hour after the collision, and sank in four or five fathoms of water, carrying down the plaintiffs’ goods, which were not burned. The plaintiffs offered to prove at the trial that there were several ways in which their property could have been saved, which are set forth in the report. No question is made as to the competency of the evidence; and the presiding judge ruled that upon these facts, if proved, the plaintiffs could not recover. We must therefore treat them as facts established.

The defendant contends that the plaintiffs’ goods were injured by the sinking of the ship, and, as the water which flowed through the hole made by the collision caused her to sink, therefore the collision, and not the fire, caused the loss. Undoubtedly the injury occasioned by the collision would have caused the vessel to sink, and thereby have injured the plaintiffs’ property; and if that had been the only cause operating, the plaintiffs cannot recover, for the insurance is not against collision, but only against fire. But if means and appliances were, at hand by which that result could have been avoided, and the intervention of a new agency, namely, that of fire, prevented their use, then the fire was the proximate and immediate cause of the loss. It added a new element of destruction, which rendered it impossible to control or prevent the consequences which would naturally follow from the collision.

In Metallic Compression Casting Co. v. Fitchburg Railroad, 109 Mass. 277" court="Mass." date_filed="1872-01-15" href="https://app.midpage.ai/document/metallic-compression-casting-co-v-fitchburg-railroad-6416796?utm_source=webapp" opinion_id="6416796">109 Mass. 277, the defendant’s servants ran a train over a hose through which water was being conveyed to extinguish a fire in the plaintiff’s buildings; and thereby the water was cut off from the fire, which then consumed the buildings. It was contended, that no direct or immediate injury was done to the plaintiff by the act of the defendant; but that the injury was occasioned by the fire directly, and by the defendant remotely. But it was held that the severing of the hose was the proximate cause of the destruction of the building. Numerous cases are cited by the court in support of its conclusion, where the question of proximate cause was considered.

The case of Atkinson v. Newcastle & Gateshead Waterworks Co. L. R. 6 Ex. 404, closely resembles the case last cited. By the defendant’s negligence the plaintiff was unable to obtain a supply of water to extinguish a fire on his premises, and it was said by Baron Bramwell: “ It has been suggested that this was not the proximate cause of damage; but to my mind clearly that is not so. The plaintiff’s right is to have the pipes charged for the purpose of extinguishing fire; and he has alleged that, in consequence of these pipes not being so charged, he could not extinguish the fire, and his house was burnt down. It appears to me that we have here the immediate consequence of a proximate cause.”

So far as the question what constitutes proximate cause is concerned, the same considerations apply equally in actions of contract as in actions of tort.

In Marsden v. City & County Assurance Co. L. R. 1 C. P. 232, by a policy of insurance, plate-glass in the plaintiff’s shopfront was insured against “ loss or damage originating from any cause whatsoever, except fire, breakage during removal, alteration or repair of premises,” none of the glass being “ horizontally placed or movable.” A fire broke out on premises adjoining those of the plaintiff, and slightly damaged the rear of his shop, but did not approach that part where the plate-glass was. Whilst the plaintiff was removing his stock and furniture to a place of safety, a mob attracted by the fire tore down the store shutters and broke the windows, for the purpose of plunder; and it was held that the proximate cause of the damage was the lawless act of the mob, and that it did not originate from fire or breakage during removal, within the exception in the policy.

In Ionides v. Universal Ins. Co. 14 C. B. (N. S.) 259, goods were insured by a policy which contained the following warranty: “Warranted free from capture, seizure and detention, and all the consequences thereof, or of any attempt thereat, and free from all consequences of hostilities, riots or commotions.” The ship and cargo were lost by stranding, occasioned by the removal by the Confederate troops, during the war of the Rebellion, of a light on the coast of North Carolina, for the purpose of misleading United States ships. And it was held that, the proximate cause of the loss being a peril of the sea, and not the hostile act of the Confederate troops in extinguishing the light, the insurer was liable as for a partial loss of that part of the cargo which remained on board incapable of being saved; but as to that portion actually saved, or which would have been saved but for the seizure by the Confederate troops, this was a loss by “the consequence of hostilities ” within the warranty, and for this the insurer was not liable.

In Insurance Co. v. Transportation Co. 12 Wall. 194" court="SCOTUS" date_filed="1871-11-18" href="https://app.midpage.ai/document/insurance-co-v-transportation-co-88381?utm_source=webapp" opinion_id="88381">12 Wall. 194, the vessel of the defendant in error was injured by a collision, in consequence of which she filled rapidly with water, and a fire broke out. The jury found that the damage done by the sinking of the vessel was the natural result of the fire only. It was also found that the water would not have caused the vessel to sink below her promenade deck, had not some other cause of sinking supervened. Mr. Justice Strong, in a very able opinion, considers the question of proximate cause. And in answer to the claim of the plaintiff in error, that the sinking of the vessel was the result of two concurrent causes, one the fire, and the other the water let in by the breach made by the collision, he says : “ As the influx of the water was the direct and necessary consequence of the collision, it is argued that the collision was the predominating, and therefore the proximate, cause of the loss. The argument overlooks the fact, distinctly found, that the damage resulting from the sinking of the vessel was the natural and necessary result of the fire only. If it be said that this was but an inference from facts previously found, it was not for that reason necessarily a mere legal conclusion. But we need not rely upon this. Apart from that finding, the other findings, unquestionably of facts, show that neither the collision nor the presence of water in the steamer’s hold was the predominating efficient cause of her going to the bottom. That result required the agency of the fire. It is found that the water would not have caused the vessel to sink below her promenade deck, had not some some other cause of sinking supervened. It would have expended its force at that point. The effects of the fire were necessary to give it additional efficiency. The fire was, therefore, the efficient predominating cause, as well as nearest in time to the catastrophe, which not only directly contributed to all the damage done, after the steamer had sunk to her promenade deck, but enlarged the destructive power of the water, and rendered certain the submergence of the vessel.” See also St. John v. American Ins. Co. 1 Kernan, 516; Peters v. Warren Ins. Go. 14 Pet. 99" court="SCOTUS" date_filed="1840-02-24" href="https://app.midpage.ai/document/peters-v-warren-insurance-86129?utm_source=webapp" opinion_id="86129">14 Pet. 99.

No peculiar force is to be attached to the word “ immediate ” as used in the policy, wherein the plaintiffs are insured “ against all such immediate loss or damage as may occur by fire to the property.”

We are of opinion that it was for the jury to decide, upon all the circumstances of the case, what was the proximate cause of the loss sustained by the plaintiffs, and whether it was the result of the fire. Milwaukee & St. Paul Railroad v. Kellogg, 94 U.S. 469" court="SCOTUS" date_filed="1877-04-30" href="https://app.midpage.ai/document/milwaukee--saint-paul-railway-co-v-kellogg-89495?utm_source=webapp" opinion_id="89495">94 U. S. 469. New trial ordered.