Guy H. Clark, as receiver of the Montborne Lumber Company, brought this action to recover on a fire insurance policy issued by the appellant to the Montborne Lumber Company. The facts were stipulated and the case was tried by the court without a jury. The lumber company operated a short logging railway. It owned a Shay locomotive covered by the policy which it alleged was “damaged by fire and by the collapse of bridges resulting from such fire to the amount of $15,000.” The stipulated facts showed that the locomotive was untouched and undamaged by the fire, but that it was so isolated as a result of the forest fire which destroyed the railroad bridges that it would cost all the locomotive was worth to rebuild the trestles or bridges so as to make the locomotive accessible for use. The court therefore held that this rendered the locomotive useless and awarded judgment for its stipulated value of $7,000. The alleged loss results from the unwillingness or inability of the insured to rebuild the bridges, and was not caused by the fire. Can it fail or refuse to rebuild its bridges and claim that the locomotive was thereby lost because of the fire? Suppose the bridges were fully insured against fire and the insured was fully reimbursed for their loss by fire and thus able to rebuild the bridges, if it so desired. Could it retain the insurance money without rebuilding, and claim that the locomotive was lost by the fire, which destroyed the bridges and thus recover upon the policy insuring it against the loss of the locomotive by the fire which destroyed the bridges but did not injure the locomotive? The answer seems too obvious to require discussion. The engine was not lost at all, either by fire or otherwise. The authorities relied upon by the insured are not in point. They hold that a loss by fire may sometimes result where the fire is the proximate cause of the injury, even though not coming into contact with the thing destroyed. 26 C.J. 340; 14 R.C.L. 1216; 6 Couch on Insurance, § 1467; Ermentrout v. Girard Fire & Marine Ins. Co.,
The receiver also sought judgment against appellant under the policy for damages to or destruction of certain freight cars belonging to the Northern Pacific Railroad, which were in use upon the Montborne Lumber Company’s logging railway under an agreement “to pay the railroad for all damage which cars delivered to it by the railroad through such connections may sustain from any cause whatever while in its possession.” The insurance company paid the loss ($8,000) directly to the Northern Pacific Railroad, and, in addition to an acquittance of all liability, the railroad company executed a release to the lumber company of its liability to it under the above clause of the contract. The trial court denied recovery to the receiver for the insured and a cross-appeal was taken from this decision.
The receiver concedes that the amount of money received by it from the insurance company would be payable by it to the
In that regard a rider to the policy which was issued to the lumber company provided that “it is also understood and agreed that this policy covers legal liability only of the assured on logging cars owned by others in the possession of the assured. * * *"
The schedule of property insured attached to the policy contains the following: “12 cars owned by any other than the assured, consisting principally of Northern Pacific flat cars, main line tanks, and coal gondolas. * * * ” The body of the policy insured the lumber company “against loss or damage-caused by fire * * * to rolling stock, as per schedule.” The receiver claims that the lumber company, as bailee, had an insurable interest in the cars in its possession and that the policy insures such cars and not the liability of the lumber company for their destruction by fire, relying upon the following clause: “2. Perils Insured Against. This policy insures only: — Against loss or damage caused by fire, derailment or collision (coming together of cars and/or locomotives in shifting or coupling not to be considered a collision), collapse of bridges, lightning, cyclone, tornado and flood.”
As to insurable interest, the’ receiver relies upon Delanty v. Yang Tsze Ins. Ass’n,
It is sometimes difficult to distinguish between an indemnity and a liability insurance policy. In the policy in suit, we have the bare terms of the policy stating that it is an insurance against loss of cars due to certain specified causes, including fire and derailment, and a further provision, incorporated into the policy by a’ rider, that the policy only covers "legal liability of the assured for cars belonging to the railroad company. While these two provisions are not altogether consistent, nevertheless, in view of the fact that additions to a policy by a rider are usually for the purpose of modifying the general terms of a policy, and, therefore, being specific, control the more general terms of the policy, Ætna Ins. Co. v. Sacramento-Stockton S. S. Co. (C.C.A.9)
Judgment reversed.