American Towing Co. v. German Fire Ins. Co.

• Decision Date: 24 March 1891
• Citation: 21 A. 553,74 Md. 25
• Parties: AMERICAN TOWING CO. OF BALTIMORE v. GERMAN FIRE INS. CO. OF BALTIMORE.
• Court: Maryland Court of Appeals

21 A. 553

74 Md. 25

AMERICAN TOWING CO. OF BALTIMORE v. GERMAN FIRE INS. CO. OF BALTIMORE.

Court of Appeals of Maryland

March 24, 1891

Appeal from superior court of Baltimore city.

Argued before ALVEY, C.J., and MILLER, IRVING, BRYAN, and MCSHERRY JJ.

Beverly W. Mister, for appellant.

W Pinkney Whyte, for appellee.

ALVEY C.J.

This was an action on a policy of insurance against loss by fire issued by the defendant to the plaintiff on the 3d day of September, 1887, for the period of one year, and which was continued by renewal for a second year. By the terms of the policy the defendant, in consideration of $25 paid, caused the plaintiff to be assured to the amount of $2,500 on the steam-tug Sampson, her hull, apparel, machinery, boiler engine, fixtures, and all appurtenances of every description (with privilege to use the Chesapeake bay and its tributaries,) against all loss or damage to the same by fire originating in any cause except invasion, foreign enemies, civil commotions, riots, or any military or usurped power whatever, for and during the term of one year, etc.; and by another clause in the policy it is provided that "in case steam-power is used in and about the property insured, and the boiler should burst, or any property insured is struck by lightning, or explosion occurs, this company is not liable unless fire ensues, and then for the loss or damage by fire only." There was a second policy held by the plaintiff upon the tug, issued by the Rochester German Insurance Company for $1,500, making the total amount of insurance $4,000, and both policies were running at the time of the occurrence of the fire in August, 1889; and, both companies being sued, the cases were by agreement tried together, and the amount of damage awarded by the verdict was duly apportioned, according to the terms of the policies. It appears that the steamer Sampson was a large, iron ocean tug, with wooden deck and house, valued at about $25,000. In August, 1889, while lying at a wharf in Georgetown, D. C., a fire occurred, whereby considerable injury was done to the wood-work of the vessel, and the interior of the boiler was seriously damaged. According to the testimony on the part of the plaintiff, the total cost of repair of the damage occasioned by the fire was $3,392.86. Of this amount the cost of repair of all the damage outside of the boiler was about $1,200, and the balance of the total cost of repair was for the necessary repair of the inside of the boiler. How the fire occurred seems to be involved in something of a mystery. The fire occurred at night; and, according to the testimony of the engineer on the tug, the fire in the furnace was banked, and the boiler well supplied with water, at the time he retired for sleep, about midnight of the 21st of August, though, when the fire was discovered, about 4 o'clock of the morning of the 22d of August, the boiler was entirely without water, and was very hot. Several expert witnesses were examined at the trial who had examined the boiler, and they gave it as their unqualified opinion that from all the apparent indications the injury to the interior of the boiler was caused by the fire in the furnace in contact with the boiler, the latter being without water to protect it; that the inside of the boiler was injured entirely by being overheated, occasioned by the absence of water necessary to protect it. The defendant, by its duly-authorized adjuster, offered to pay for all damages done by the fire outside of the furnace, but refused to pay for the injury done to the interior of the boiler by the action of fire in the furnace, insisting that such injury was not embraced within the risk insured against. For all the injury done outside the boiler the jury, under the instructions of the court, awarded damages to the plaintiff, but not for the injury done to the interior of the boiler; and the only question on this appeal is whether the court was right in its instruction to the jury in holding that the injury to the interior of the boiler caused by the fire in the furnace was not a damage contemplated by the parties to the policy. The court instructed...