33 Mo. App. 394 | Mo. Ct. App. | 1889
delivered the opinion of the court.
The defendant company issued a policy of fire insurance on certain buildings owned by the plaintiff, thereby agreeing to indemnify him to the extent of four thousand dollars “against loss or damage to the same by fire originating in any cause, except invasion, foreign enemies, civil commotion, riot or any military or usurped power whatsoever, for and during the term of five years from and after September 10, 1887.” The policy contained the clause that “if a building shall fall except as the result of a fire, all insurance by .the company on it or its contents shall immediately cease and determine.” On December 1, 1887, the buildings insured were wholly destroyed, as plaintiff claims, by fire, within the meaning of such policy. The plaintiff
The trial of the cause resulted in a verdict and judgment for plaintiff and the errors assigned on this appeal relate to the action of the court in modifying and refusing the defendant’s instructions, and giving those asked by the plaintiff. The plaintiff gave evidence tending to show inferentially at least, that on the night of the destruction of the building, and preceding* the explosion, there was what is known as an illegal or negligent fire on the premises, and plaintiff’s theory of the accident was that this illegal or negligent fire communicated with some explosive substance, probably a mixture of hydro-carbonic or illuminating gas with atmospheric air, thus causing the explosion, which unquestionably resulted in the destruction of the building, The defendant’s theory was that’some inflammable and explosive substance, probably a mixture of illuminating gas with atmospheric air, was ignited by a gas-jet left burning in a grocery-store on the premises, or by a fire in the stove, or some other lawful fire. There was inferential, but no direct, evidence that there was such lawful fire on the premises at the time, although one of
On part of the plaintiff, the court instructed the jury as follows:
“1. In determining whether the buildings insured were damaged or destroyed by fire, the jury may find that they were so damaged or destroyed by fire if they believe from the evidence that a fire of some description upon some part of the premises was the original cause of the loss, although they may also find from the evidence that such fire was followed by an explosion, which was itself the direct result of the fire, and which*399 brought about the fall of the buildings, — in other words, if the jury believe from the evidénce that the fall of the buildings was the direct result of some burning substance in contact with some .part of said buildings, it is immaterial whether such result manifested itself in the form of combustion or of explosion, or of both combined. In either case, the damage which ensued was by the action of fire and it is covered by the terms of the policy sued- on in this action.”
“2. The court instructs the jury that the policy of insurance sued on is a covenant or contract of indemnity, whereby the defendant agrees to indemnify the plaintiff against loss or damage to the buildings covered by the policy by fire originating in any cause; hence if the juiy believe from the evidence that the plaintiff was the owner of the buildings described in the policy, that such buildings were damaged or destroyed by fire, that more than sixty days have elapsed from the timé when proofs of the loss were furnished to the defendant by the plaintiff, down to the institution of this suit, then the plaintiff is entitled to recover ' in this action and the jury will return a verdict for the plaintiff.”
On part of the defendant, but of its own motion, the court gave the following instructions:
“3. The court instructs the jury that if they believe from the evidence that the loss or damage to the property insured was occasioned by an explosion, which was not caused by fire on said premises, the plaintiff cannot recover in this case.”
“4. The court instructs the jury that if they find and believe from the evidence that the buildings in question were thrown down by an explosive substance, or by an explosion- of illuminating gas, not caused by fire in said premises, and were not damaged by fire until after being so thrown down, then plaintiff is not entitled to recover in this action and the jury will find for the defendant.”
*400 “ 5. The jury are instructed that if they find from the evidence the loss or damage to the property insured was caused by an explosion on or near the premises insured, the plaintiff cannot recover in this case ; unless the jury further believe from the evidence that said explosion was caused by fire on said premises.”
The instructions asked by the defendant in lieu whereof the modified instructions were given by the court were as follows :
“ 6. The court instructs the jury that if they find from the evidence that the loss or damage to the property insured was occasioned by an explosion, the cause of which the jury cannot determine from the evidence, the plaintiff cannot recover in this case.
“7. The court instructs the jury that if they find and believe from the evidence that the buildings in question were thrown down by an explosive substance or by an explosion of illuminating gas, and were not damaged by fire until after being so thrown down, then plaintiff is not entitled to recover in this action and the jury will find for the defendant.”
“ 8. The jury are instructed if they find from the evidence the loss or damage to the property insured was caused by an explosion on or near the premises insured the plaintiff cannot recover in this case.”
Besides these instructions the defendant asked nine other instructions, all bearing upon the cause of the loss. We deem it unnecessary to set these instructions out in detail, since there was only one issue before the jury on the theory on which the court and the defendant tried the case, namely, whether the loss was the result of an unlawful fire on the premises antecedent to and causing the explosion, or explosions, which resulted in the destruction of the premises. This being the case the court would have been justified, on the authority of Crawshaw v. Sumner, 56 Mo. 517, and Desberger v.
The only inquiry which is properly before us is whether the court erred in the instructions given, and whether the instructions given were framed so as to submit all the issues arising upon the evidence to the jury, since non-instruction is no ground of error in this state. The defendant maintains that the court did so err; that the instructions given for plaintiff, as well as the modified instructions given by the court, properly admit of the construction that the defendant was liable for loss caused by explosion even though such explosion was the result of the ignition of explosive material by a burning gas-jet or other lawful and innocent fire on the premises. Conceding for the sake of argument that the law is as contended for by the defendant, and that even under the peculiar.terms of this policy it could not be held liable for damages caused by an explosion accompanied by ignition of the explosive substance, unless the ignition of* the explosive substance were caused by a negligent or unlawful and not by an innocent antecedent fire, and yet we see no just ground of complaint against the instructions given by the court. It must be assumed that juries empaneled to try these cases possess ordinary intelligence, and that when they are referred to fire as an agent of destruction, they know that it does not mean the fire in a stove or the light of a burning gas-jet, since the application of the term to the latter would at best be a very unusual one, even in common parlance. In the first instruction, the meaning of the word fire is limited to a “burning substance in contact with some part of the building,” which limitation is more intelligible to the minds of the layman than the
It results that the judgment must be affirmed, and all the judges concuring, it is so ordered.