Cohn & Greenman v. National Insurance Company

• Decision Date: 03 November 1902
• Citation: Cohn & Greenman v. National Insurance Company, 70 S.W. 259, 96 Mo.App. 315 (Kan. App. 1902)
• Parties: COHN & GREENMAN, Respondents, v. NATIONAL INSURANCE COMPANY, Appellant
• Court: Kansas Court of Appeals

70 S.W. 259

96 Mo.App. 315

COHN & GREENMAN, Respondents, v. NATIONAL INSURANCE COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

November 3, 1902

Appeal from Jackson Circuit Court.--Hon. John W. Henry, Judge.

AFFIRMED.

Judgment affirmed.

Fyke Yates, Fyke & Snider for appellant.

(1) The instruction is in strict harmony with the condition of the contract, was fully supported by the evidence, and was therefore properly given.Briggs v. Ins. Co.,53 N.Y. 446, 2 Ins. L. J. 929;Hobbsv. Ins. Co., 11 Ont. App. 741;Miller v. Ins. Co.,41 Ill.App. 395;Ins. Co. v. Foote,22 Ohio St. 340.(2) In Miller v. Ins. Co.,41 Ill.App. 395, it is held under a condition exactly like the condition in the policy in this case, that no recovery can be had for loss caused by explosion, even though the explosion be caused by fire.(3) There was no evidence in this case showing that there was an antecedent fire--and in that respect, among others, this case differs materially from the case of LaForce v. Ins. Co., 43 Mo.App. 518.

Leon Block for respondents.

(1)InstructionNo. 3, given on behalf of defendant, was erroneous.It entirely ignores the principle well established in this State, that defendant is liable for the results of an explosion if the fire preceded it.La Force v. Ins Co.,43 Mo.App. 534;Renshaw v. Ins. Co.,103 Mo. 606;Ibid, 33 Mo.App. 394;Ins. Co. v. Dorsey,56 Md. 70;Watersv. Ins. Co., 11 Peters (U.S.) 213.(2) This instruction states emphatically that the defendant is not liable for any damage caused by explosion of any kind.Washburnv. Ins. Co., 2 Flippin 664;Wood on Fire Insurance(2 Ed.), sec. 104;Principals of Insurance (Barber), p. 122.The case of La Force v. Ins. Co.,43 Mo.App. 518, is express authority for our contention in this regard.(3)InstructionNo. 3, asked by plaintiffs should have been given.All the damages mentioned therein are covered by a fire policy.1 Wood on Fire Insurance (2 Ed.), p. 267;Newmark v. Ins. Co.,30 Mo. 160.(4) In case the reasons assigned by the trial court for granting a new trial are not sufficient, this court may inquire whether the order granting a new trial may be upheld on some other ground assigned in the motion therefor.Hoepper v. Hotel Co.,142 Mo. 379;Thiele v. Railway,140 Mo. 335;Jegglin v. Roeder,79 Mo.App. 428.

OPINION

BROADDUS, J.

--The plaintiffs sue on a certain fire insurance policy in which one of the conditions was as follows: "This company shall not be liable for loss caused directly or indirectly by explosion of any kind, unless fire ensue, and in that event by fire only."

The fire was alleged to have occurred on the tenth of January, 1900, at plaintiffs' place of business in Kansas City, Missouri; and that plaintiffs' loss on their stock of goods and damages to fixtures amounted to the sum of $ 700.There was a trial before a jury and plaintiffs recovered in the sum of one dollar, which was set aside by the court upon their motion, from which action of the court in setting aside said verdict the defendant appealed.The defense was, that "an explosion took place in a stove at plaintiffs' place of business, and in a flue with which said stove was connected," which caused plaintiffs' loss, and "that no fire ensued, and that plaintiffs' said property was not damaged by fire."

There was evidence that an explosion occurred in plaintiffs' stove which had the effect of detaching the pipe connecting the stove and the flue; that the pipe was secured by wires, attached to the cornice of the shelving in which plaintiffs had goods; that when the pipe became detached from the flue, its weight pulled down the shelves with the goods to the floor, and that they were injured thereby, and that some boxes of goods were burned and the goods were injured by being thrown about, trampled on, and by other means.And there was some evidence that the soot in the flue had caught fire which might have produced the explosion.The fire was extinguished by a member of the fire department of the city by the use of a Babcock extinguisher.

The plaintiffs assign twelve grounds in their motion for new trial.It was sustained on the ground that the court had committed error in giving instruction No. 3 in behalf of the defendant.Said instruction is as follows."The court instructs the jury that under the terms of the policy sued on the defendant is not liable for any damages caused by explosion of any kind unless fire ensues; and if there was an explosion and fire ensued thereafter, defendant is liable only for the actual damage caused by said fire, and is not liable for any damage caused by said explosion or on account of the fall of any shelving as a result of said explosion."

No fault can be found with said instruction in view of the conditions of the policy, that the defendant was not to be liable for loss caused directly or indirectly by explosion of any kind unless fire ensues, and in that event only for the fire.The meaning of the instruction and the condition of the policy are synonymous.The defendant contracted against liability caused by explosion, except when fire should ensue; that is, follow as a consequence of the explosion.And it was only to be held liable for damages resulting from fire, which ensued from an explosion; that is, which follows as a consequence of an explosion.

The plaintiffs contend that said instruction is in conflict with the rule found in the case of Renshaw v. Ins. Co.,103 Mo. 595, 15 S.W. 945.That is a misapprehension.The language of Judge MACFARLANE, who delivered the opinion of the court, is: "It being well settled that the loss in the case would be covered by the broad and unconditional terms of the policy, if the explosion was the result of the pre-existing fire, the question is, whether or not the jury was properly instructed on that theory. . . .The question of fact for the jury was, did a wrongful fire precede and cause the explosion?"An instruction presenting the precise question to the...