Cabbell v. Milwaukee Mechanics Insurance Company

• Decision Date: 07 April 1924
• Citation: 260 S.W. 490,218 Mo.App. 31
• Parties: E. E. CABBELL, Respondent, v. MILWAUKEE MECHANICS INSURANCE COMPANY, a Corporation, Appellant. *
• Court: Kansas Court of Appeals

260 S.W. 490

218 Mo.App. 31

E. E. CABBELL, Respondent, v. MILWAUKEE MECHANICS INSURANCE COMPANY, a Corporation, Appellant. *

Court of Appeals of Missouri, Kansas City

April 7, 1924

Appeal from the Circuit Court of Carroll County.--Hon. Ralph Hughes Judge.

AFFIRMED.

Judgment affirmed.

Franken & Timmons for respondent.

Fyke Snider & Hume for appellant.

OPINION

TRIMBLE, P. J.

Plaintiff's suit is on a policy of fire insurance covering his dwelling, in which he seeks to recover the sum of $ 700 for loss and damage therein alleged to have been caused by fire.

The answer admitted the execution and delivery of the policy, but denied that plaintiff suffered a loss to said dwelling by fire. Proof of loss was waived. After plaintiff's evidence was in, defendant demurred but was overruled, and then defendant rested, offering no evidence.

The jury returned a verdict in plaintiff's favor for $ 600. Defendant appealed.

The policy agreed to indemnify plaintiff against loss or damage by fire and lightning not exceeding the sum of $ 6000, from noon of November 22, 1917, to noon of November 22, 1922, on two-story dwelling house, including foundation, additions, now and hereafter attached, irremovable fixtures, plumbing, heating and lighting, apparatus, porches, storm doors and screens while therein or attached thereto. There were no exceptions with reference to fires caused by explosions.

On January 15, 1922, while the policy was in force, the heating plant in said dwelling exploded and the damage sued for arose.

Plaintiff had a hot water heating plant in his house. In the basement was the heater or furnace around which was a hood or jacket containing water so arranged in sections as that the water could circulate therein around through the jacket and next to the fire where, becoming heated, it would rise through pipes and pass through radiators warming the house and then return to the jacket about the fire, there to be heated again.

Owing to a failure of the valves into the expansion tank to work properly but remained tightly closed, the heater exploded and an oblong piece was blown out of the front of the heater near the door. This hole, thus made, was merely in the outer shell of one of the sections of the jacket and the opening did not penetrate into the fire chamber. The force of the outrushing stream and water threw down plaintiff's son, who was in the basement at the time, and blew him several feet. As soon as he could he got out of the basement and went upstairs. In a few moments later a second explosion occurred, this time at the back end of the fire chamber, and the force of this explosion blew practically all of the fire out of the furnace into the basement. At the time of the explosion, the furnace was full of burning Richmond soft coal. Live coals, from the size of a man's double fist down to small particles, were scattered about over the basement floor. Some of them were blown thirty feet from the furnace. There was a bushel or a bushel-and-a-half of coal in the furnace when the explosion occurred. There was a dirt floor in the basement, so that nothing pertaining to the house caught fire, but the smoke, soot, and possibly some ashes, permeated the house and damaged the walls, causing the loss sued for.

There is no doubt but that the coals scattered over the basement floor were live coals, though appellant appears to make some point that they were not "blazing." Plaintiff testified positively that the steam did not put out the fire, and though he first said the chunks of coal were smoking and blazing and then afterwards, on cross-examination, said he "wouldn't say there was any blaze to them," yet this, of course, was when he got down into the basement after the second explosion. While we are not able to perceive what difference it would make whether the fragments scattered over the floor were flaming or were merely live coals of fire, yet the jury could well find from the evidence that at the moment of their expulsion on the floor they were aflame, even though they were no longer burning with a flame when plaintiff reached the basement. The fact that almost all of the fire was blown out into the basement, that the steam did not put out the fire, and that the smoke and soot penetrated through the floors into the house, would clearly indicate that when the second explosion occurred it was fire that was scattered over the basement floor; and from this fire the loss and damage arose, caused by the smoke and soot.

To constitute loss or damage by fire, within the usual terms of a policy, there must be actual fire, and it "must be a hostile fire, that is, one which becomes uncontrollable or breaks out from where it was intended to be, and becomes a hostile element, and where there is such a fire, recovery may be had for resulting losses or damages in regard to which there has been no actual ignition such as a loss or damage caused by smoke and soot, or by heat. Where the fire is a friendly one, that is, one which is employed for the ordinary purpose of lighting, heating, or manufacturing, and is confined within its usual limits . . . it is not a fire within the usual terms of a policy and recovery cannot be had for loss or damage caused thereby, such as damage caused by . . . smoke or soot." [26 C. J. 340.] (Italics ours.) "The policy, by its express terms, insured the plaintiff against loss or damage to his buildings by fire. The contract is broad enough to include all fires, however originating and all damages arising therefrom of whatever character." [Renshaw v. Missouri, etc., Ins. Co., 103 Mo. 595, 601-2.] It would seem that the contract in the case at bar is broad enough to cover the damage arising from the fire shown...