No. 70 | 2d Cir. | Nov 13, 1911
The insured premises were situated in the city of San Francisco. On the morning of April 18, 1906, prior to 8 a. ' m., the earthquake occurred, which produced such widespread destruction. The shock, or successive shocks, did not apparently injure plaintiff’s property,. but by upsetting stoves, breaking electric circuit wires, and in other ways the earthquake immediately and directly caused a number of fires to start in other buildings, more or less remote, to the north and to the west of plaintiff’s building. In the course of some hours these fires, being unchecked, spread in one uninterrupted conflagration to said building and destroyed it and its contents.
“This society shall not be liable for loss caused directly or indirectly by invasion, insurrection, riot, civil war or commotion, or military or usurped power, or by order of any civil authority or for loss or damage occasioned by or through any volcano, earthquake, or hurricane, or other eruption, convulsion or disturbance, 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 damage by fire only) by explosion of any kind, or lightning; but liability for direct damage by lightning may be assumed by specific, agreement hereon.”
The United States Circuit Court of Appeals for the Ninth Circuit had the same question before it in Williamsburgh City Fire Insurance Company v. Willard, 164 F. 404" court="9th Cir." date_filed="1908-10-05" href="https://app.midpage.ai/document/williamsburgh-city-fire-ins-co-of-brooklyn-v-willard-8768638?utm_source=webapp" opinion_id="8768638">164 Fed. 404, 90 C. C. A. 392, 21 L. R. A. (N. S.) 103. The fire was the same, following the same earthquake, and the language of the excepting clause was substantially identical. That court held that, construing such provision most strongly against the insurer in accordance with the settled rule, and giving the words their common ordinary meaning, the word “occasioned” was equivalent to “caused,” and the phrase “by or through” was but a repetition of words meaning the same thing, and that since the words “directly or indirectly” appeared in the first clause of the exception from loss by invasion, insurrection, etc., but did not appear in the second clause of
“Comity is not a rule of law, but one of practice, convenience, and expediency. It is something more than mere courtesy, which implies only deference to the opinion of others, since it has substantial value in securing uniformity of decision and discouraging repeated litigation of the same question. But its obligation is not imperative. * * * ft recognizes the fact that the primary duty of every court is to dispose of cases according to the law and the facts; in a word to decide them right. In doing so, the judge is bound to determine them according to his own convictions. If he be clear in those convictions, he should follow them. It is only in cases where, in his own mind, there may be a doubt as to the soundness of Ms views that comity comes into play, and suggests a uniformity of ruling, to avoid confusion, until a higher court has settled the law.”
Following the rule above indicated, we are satisfied that the case at bar should be disposed of by au affirmance, since we are very far from being clear in our convictions that the Court of Appeals in the Ninth Circuit erred in its construction of the contract.
Judgment affirmed.