Bird v. St. Paul Fire & Marine Ins. Co.

Decision Date04 June 1918
CourtNew York Court of Appeals Court of Appeals


Appeal from Supreme Court, Appellate Division, Second Department.

Action by Henry Bird against the St. Paul Fire & Marine Insurance Company. From a judgment of the Appellate Division (180 App. Div. 470,167 N. Y. Supp. 707), in controversy submitted on an agreed statement of facts, difendant appeals. Reversed and rendered.

Pierre M. Brown, of New York City, for appellant.

Nelson Zabriskie, of New York City, for respondent.


On September 12, 1915, the defendant, a fire and marine insurance company, issued to the plaintiff its policy of insurance covering the body, tackle, apparel, and other furniture of the canal boat, the Henry Bird, Jr. ‘Touching the adventures and perils which the said company are content to bear and take upon themselves by this policy, they are of the sounds, harbors, bays, rivers, canals and fires, that shall come to the damage of the said boat, or any part thereof.’ There was no express exception of damage from explosion.

On the night of July 30, 1916, a fire broke out from some unknown cause beneath some freight cars in the Lehigh Valley Railroad Company's freightyards at Black Tom in the harbor of New York. The cars were loaded with explosives, and, after the fire had burned at least 30 minutes, the contents of the cars exploded. This explosion caused another fire, which in turn caused another and much greater explosion of a large quantity of dynamite and other explosives stored in the freightyard.The last explosion caused a concussion of the air, which damaged plaintiff's vessel about 1,000 feet distant to the extent of $675. No fire reached the vessel, the damages being solely from the concussion caused by the second explosion. The question is whether the loss is covered by the policy. In a controversy submitted under section 1279 of the Code, these facts stand admitted. The Appellate Division gave judgment for the plaintiff.

[1] There is no doubt that when fire spreads to an insured building and there causes an explosion, the insurer is liable for all the damage. Wheeler v. Phenix Ins. Co., 203 N. Y. 283, 96 N. E. 452,38 L. R. A. (N. S.) 474, Ann. Cas. 1913A, 1297;Lynn Gas & Electric Co. v. Meriden Ins. Co., 158 Mass. 570, 33 N. E. 690,20 L. R. A. 297, 35 Am. St. Rep. 540;Scripture v. Mutual Fire Ins. Co., 10 Cush. (Mass.) 356, 57 Am. Dec. 111;Waters v. Merchants' Louisville Ins. Co., 11 Pet. 213, 225, 9 L. Ed. 691. We assume that, in the absence of some exception in the policy, a like liability follows when an explosion caused by fire occurs in neighboring buildings. Hustace v. Phenix Ins. Co., 175 N. Y. 292, 302, 303,67 N. E. 592,62 L. R. A. 651. But the question here is whether space is a factor in the solution of the problem. The Appellate Division says that it is not; no matter how great the distance, the insurer remains liable. Other courts have held otherwise. The question came before the English Court of Common Pleas in Everett v. London Assurance Co., 19 Common Bench N. S. 126. There gunpowder ignited and exploded. The plaintiff's building, half a mile away, was damaged by concussion. The court (Erle, C. J., and Willes and Byles, JJ.) gave judgment for the defendant. ‘Speaking of this injury, no person would say that it was occasioned by fire. It was occasioned by a concussion or disturbance of the air caused by fire elsewhere.’ A like ruling was made in Louisiana by a divided court. Caballero v. Home Mut. Ins. Co., 15 La. Ann. 217. In Tennessee, the ruling was the same:

‘Legal conclusions cannot always be safely reached by pressing the processes of logical illation to their ultimate results.’ Hall v. Nat. Fire Ins. Co., 115 Tenn. 513, 521, 92 S. W. 402, 403 (112 Am. St. Rep. 870,5 Ann. Cas. 777).

[2] The problem before us is not one of philosophy. Pollock, Torts (10th Ed.) p. 37. If it were, there might be no escape from the conclusion of the court below. General definitions of a proximate cause give little aid. Our guide is the reasonable expectation and purpose of the ordinary business man when making an ordinary business contract. It is his intention, expressed or fairly to be inferred, that counts. There are times when the law permits us to go far back in tracing events to causes. The inquiry for us is how far the parties to this contract intended us to go. The causes within their contemplation are the only causes that concern us. A recent case in the House of Lords gives the true method of approach. Leyland Shipping Co. v. Norwich Fire Ins. Co., 118 Law Times, 120, 125, decided January, 1918, not yet officially reported. Lord Shaw refers in his opinion to the common figure of speech which represents a succession of causes as a chain. He reminds us that the figure, though convenient, is inadequate. ‘Causation is not a chain, but a net. At each point, influences, forces, events, precedent and simultaneous, meet, and the radiation from each point extends indefinitely.’ Leyland Shipping Co. v. Norwich Fire Ins. Co., supra. From this complex web, the law picks out now this cause and now that one. The same cause producing the same effect may be proximate or remote as the contract of the parties seems to place it in light or shadow. That cause is to be held predominant which they would think of as predominant. A commonsense appraisement of everyday forms of speech and modes of thought must tell us when to stop. It is an act of ‘judgment as upon a matter of fact.’ Leyland Shipping Co. v. Norwich Fire Ins. Co., supra.

This view of the problem of causation shows how impossible it is to set aside as immaterial the element of proximity in space. The law solves these problems pragmatically. There is no use in arguing that distance ought not to count, if life and experience tell us that it does. The question is not what men ought to think of as a cause. The question is what they do think of as a cause. We must put ourselves in the place of the average owner whose boat or building is damaged by the concussion of a distant explosion, let us say a mile away. Some glassware in his pantry is thrown down and broken. It would probably never occur to him that, within the meaning of his policy of insurance, he had suffered loss by fire. A philosopher or a lawyer might persuade him that he had, but he would not believe it until they told him. He would expect indemnity, of course, if fire reached the thing insured. He would expect indemnity, very likely, if the fire was near at hand, if his boat or his building was within the danger zone of ordinary experience, if damage of some sort, whether from ignition or from the indirect consequences of fire, might fairly be said to be within the range of normal apprehension. But a different case presents itself when the fire is at all times so remote that there is never exposure to its direct perils, and that exposure to its indirect perils comes only through the presence of extraordinary conditions, the release and intervention of tremendous forces of destruction. Tilton v. Hamilton Fire Ins. Co., 14 How. Prac. 363, 372, 373. A result which in other conditions might he deemed a mere incident to a fire, and therefore covered by the policy, has ceased to be an incident, and has become the principal. Briggs v. No. A. M. Ins. Co., 53 N. Y. 446, 449. The distinction is no less real because it involves a difference of degree. In such a case, the damage is twice removed from the initial cause. It is damage by concussion; and concussion is not fire nor the immediate consequence of fire. Benner v. Atl. D. Co., 134 N. Y. 156, 161, 162,31 N. E. 328, 17 L. R. A. 220, 30 Am. St. Rep. 649; Booth v. R., W. & O. T. R. R. Co., 140 N. Y. 267, 280,35 N. E. 592,24 L. R. A. 105, 37 Am. St. Rep. 552;Holland House Co. v. Baird, 169 N. Y. 136, 62 N. E. 149. But there is another stage of separation. It is damage by concussion traveling over a distance so remote that exposure to peril is not within the area of ordinary prevision, the range of probable expectation. The average man who speaks of loss by fire does not advert to the consequences of this play of catastrophic forces.

Precedents are not lacking for the recognition of the space element as a factor in causation. This is true even in the law of torts where there is a tendency to go farther back in the search for causes than there is in the law of contracts. Smith, Legal Cause in Actions of Tort, 25 Harvard Law Review, pp. 126, 127, 326. Especially in the law of insurance, the rule is that, ‘You are not to trouble yourself with distant causes.’ Willes, J., in Ionides v. Univ. Marine Ins. Co., 14 C. B. N. S. 289; Leyland Shipping Co. v. Norwich Fire Ins. Society, 1917, 1 K. B. 873, 883, 893. ‘In an action on a policy, the causa proxima is alone considered in ascertaining the cause of loss; but in cases of other contracts and in questions of tort the causa causans is by no means disregarded.’ Fenton v. Thorley & Co., 1903, A. C. 443, 454; Smith, supra, p. 326. The rule ‘is based,’ it is said, ...

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