Stillpass v. Fidelity & Guaranty Fire Corp.

• Decision Date: 30 November 1942
• Citation: 71 Ohio App. 197,48 N.E.2d 1017
• Court: Ohio Court of Appeals
• Parties: STILLPASS v. FIDELITY & GUARANTY FIRE CORPORATION.

48 N.E.2d 1017

71 Ohio App. 197

STILLPASS v. FIDELITY & GUARANTY FIRE CORPORATION.

Court of Appeals of Ohio, First District, Hamilton.

November 30, 1942

Harmon Colston, Goldsmith & Hoadly, of Cincinnati, for appellant.

Davies Hoover & Beall, of Cincinnati, for appellee.

MATTHEWS Presiding Judge.

We agree with the Court of Common Pleas that when this fire policy is construed in accordance with the familiar rule that any provisions of doubtful or ambiguous meaning must be given the meaning most favorable to the assured, the loss suffered was covered by it. In unambiguous words the policy provides for the protection from 'Fire, arising from any cause whatsoever' and at no place in the policy is there any clear limitation upon the wide scope of that provision. The fact that there is affirmative provision elsewhere in the policy for protection against explosion generally is in no sense inconsistent with the conception of protection against loss from explosion accompanying or following as a direct result of fire. And there was fire here in connection with the property covered by the policy.

Appellant relies on certain cases. The first and principal one is German Fire Ins. Co. v. Roost, 55 Ohio St. 581, 45 N.E. 1097, 1098, 36 L.R.A. 236, 60 Am.St.Rep. 711, but in that case there was no fire in relation to the property mentioned in the policy, and in unambiguous language the policy excluded all liability resulting from explosion except where fire ensues 'and then the loss or damage by fire only.' The dissimilarity is striking.

In United Life, Fire & Marine Ins. Co. v. Foote, 22 Ohio St 340, 10 Am.Rep. 735, there was an express provision that the insurer would not be liable for 'any loss or damage occasioned by, or resulting from any explosion whatever whether of steam, gunpowder, camphene, coal-oil, gas, nitroglycerine, or any explosive article or substance'. The property insured, to the knowledge of the parties, was used in the manufacture of a highly volatile substance. A flame was burning from a gas jet and upon this volatile substance coming in contact with the flame an explosion followed by fire resulted. The recital shows that the fire was the direct result of the explosion. No uncontrolled fire preceded the explosion. In the case at bar it is manifest that there must have been an uncontrolled fire preceding and causing the explosion as well as some fire resulting from the explosion. And in the policy here under interpretation there is no provision expressly exempting the insurer from loss occasioned by explosion.

Boatman's Fire & Marine Ins. Co. v. Parker, 23 Ohio St. 85, 13 Am.Rep. 228, is also cited. The court held the insurer liable for loss by fire resulting from an explosion, in the face of a provision exempting from liability for loss from explosion. The court distinguished United Life, Fire & Marine Ins. Co. v. Foote, supra. It seems to us the two cases are of value as showing that the language of each policy must be considered and that a decision construing another policy containing different language applied to different circumstances can shed no more than an uncertain light upon the proper interpretation of a policy couched in different language.

We find Perrin's Adm'rs v. Protection Inc. Co., 11 Ohio 147, 38 Am.Dec. 728, authority only for the two propositions that a new trial will not be granted on the ground of newly discovered evidence that is merely cumulative, and that it was no defense to an action on that policy of insurance that the insured's agents were negligent. Neither proposition would be disputed now, but neither has any application here.

In Mitchell v. Potomac Ins. Co., 183 U.S. 42, 22 S.Ct 22, 46 L.Ed. 74, and Washburn v. Western Ins. Co., Fed.Cas.No. 17,216, the...