13 Haw. 160 | Haw. | 1900
OPINION OF THE COURT BY
This is one of three fire insurance cases argued at this term, representative of many others, arising ont of the burning of “Chinatown” in the city of Honolulu on the 20th of last January. The action is for $5,000 upon a policy issued by tbe defendant company, of Hamburg, Germany, upon the merchandise contained in the plaintiffs’ store on Maunakea street, a little above King street, in-this city.
The case was tried by tbe circuit court, jury waived, and judgment rendered for tbe plaintiffs and now comes bere on several exceptions.
Tbe only questions raised are whether there was a “civil commotion” and, if so', whether that caused the fire — so as to bring
The facts are briefly as follows: The bubonic plague broke-out in Honolulu on December 12, 1899. A number of cases, occurred in Ohinatown, which was in an insanitary condition, and several in other parts of the city. Ohinatown, consisting of fifteen blocks, bounded by the Nuuanu stream and Kukui, Nuuanu, Marine and Queen streets, was placed in quarantine by th'e Board of Health, and to maintain the quarantine the local militia was placed on duty. Subsequently the city of Honolulu was quarantined from the rest of the island and traffic with that as well as with the other islands and foreign ports was carried on only to a limited extent and under regulations of the Board of Health. The people organized “The Citizens’ Sanitary Committee,” which, acting under the directions of the Board, undertook the work of making, a house to house inspection of the city twice a day. Several hundred people were engaged in this work. For a time the eonrts suspended business for the most part and business houses opened late and closed early in order to enable employees to assist in the work of inspection and other work connected with the plague. The quarantine was finally raised in the month of May, 1900.
In the early part of January the Board adopted fire as a means of disinfection and thereafter from' time to time until the 20th of that month burned a number of buildings. After inspecting the locality, the Board on the 10th of that month passed a resolution declaring that a certain portion of what was known as Block 15, -the block in Chinatown furthest inland or to the windward when the trade winds blew, was in an insanitary condition and infected by bubonic plague, that the infection could not be removed by any means but fire, and ordering that all the buildings within that portion of the block be destroyed by fire. The President of the Board thereupon directed one of the Fire Commissioners to bum .such buildings. The Fire Commissioner caused the fire to be started by and under the supervision of the
Counsel for the defendant would have the court find that a civil commotion was occasioned upon the outbreak of the plague and continued until the 20th of January when the fire in question was started by the Health authorities. The phrase “civil commotion” is no doubt of broad meaning but it cannot be stretched- to cover the condition prevailing in this city during the period preceding the fire in question. Naturally, courts have seldom been called upon to construe this phrase. Lord Mansfield, applying it to the riot acts of 1780, said: “I think a civil commotion is this, an insurrection of the people for general purposes, though it may not amount to a rebellion while there is a usurped power.” Langsdale v. Mason, quoted in Joyce, Ins., Sec. 2581. This is said to have been quoted in Portsmouth Ins. Co. v. Reynolds, 32 Gratt (Va.) 622. 6 Am. & Eng. Enc. of Law, 2nd Ed. 291. In Spruill v. N. C. Mut. Life Ins Co., 46 N. C. 126,. .-a case of insurance upon the life of a fugitive slave who was -shot by persons attempting to capture him, the court, holding that there was no civil commotion, said: “A commotion is defined by the lexicographer referred to, (Worcester)- to be a tumult; and a tumult to- be a promiscuous commotion of a multitude; an irregular violence; a wild commotion. A civil commotion, therefore, requires the wild or irregular action of many persons assembled together.” It is true that in this case the. business of the courts and of the community was mpre or less
It may be that a fire of this kind is so unusual that the insurance company did not in fact contemplate it and that it contemplated only ordinary risks, but we must go by the terms of the policy and hold it to cover all loss or damage by fire not included in one of the excepted risks. The probable intention of the parties may aid in the construction of doubtful phrases in the policy, but cannot alter the plain meaning of its language.
If bubonic plague were named in the policy as one of the excepted risks it might be a nice question whether that was the proximate cause of the fire, but that was not mentioned as an excepted risk.
The plague itself was not a civil commotion and the facts of the case do not show that it caused a civil commotion prior to the fire ir. question. It is unnecessary to go further and say whether, if the condition existing prior to the fire could be properly described as a civil commotion, it, rather than the plague or the order of the Health authorities, was the cause of the fire.
The exceptions are overruled.