O'Connor v. Queen Ins. Co. of Am.

• Decision Date: 26 October 1909
• Citation: 122 N.W. 1038,140 Wis. 388
• Parties: O'CONNOR v. QUEEN INS. CO. OF AMERICA.
• Court: Wisconsin Supreme Court

140 Wis. 388

122 N.W. 1038

O'CONNOR

v.QUEEN INS. CO. OF AMERICA.

Supreme Court of Wisconsin.

Oct. 26, 1909.

Appeal from Municipal Court, Outagamie County; T. H. Ryan, Judge.

Action by D. J. O'Connor against the Queen Insurance Company of America. From a judgment for plaintiff, defendant appeals. Affirmed.

Action upon a fire insurance policy. The servant of plaintiff built a fire in the furnace with paper and cannel coal, not used or intended to be used for such purpose, which fire developed within a few moments to such a degree of fury as to fill the house with great volumes of smoke, soot, and excessive and intense heat and damage the personal property therein to the amount as found by the jury $562. The only question submitted to the jury was the amount of damages, and the court directed a verdict for the plaintiff for the amount of damages found by the jury. Judgment was entered for plaintiff accordingly, from which this appeal was taken.

Marshall, J., dissenting in part.D. G. Classon (Bates, Harding, Edgerton & Bates, of counsel), for appellant.

Francis S. Bradford, for respondent.

KERWIN, J. (after stating the facts as above).

The policy in this case, being the Wisconsin standard form, insured the plaintiff “against all direct loss and damage by fire”; and the controversy is as to whether the loss and damage was caused by anything insured against by the defendant company. The question arises whether the fire which caused the damage was a fire within the meaning of the policy. The plaintiff lived in a rented house heated by a furnace. His servant built a fire in the furnace of material not for use therein or intended so to be used, and of such a highly inflammable character as to cause intense heat and great volumes of smoke to escape through the registers leading into the rooms, and greatly damage plaintiff's property. The heat was so intense as to char and injure furniture, and the great volumes of smoke and soot greatly injured the furnishings and personal property of the plaintiff. It does not appear from the evidence that there was any ignition outside of the furnace, although the fire was so intense as to overheat the chimney and flues, and char furniture in the rooms. The evidence shows that the chimney was so hot it seemed as though it was on fire, that the fire was burning fiercely in the furnace, around the mop boards was burned, and the mop boards blistered, the wall paper charred and burned, and the chimney cracked from the excessive heat. It is the contention of appellant that the damage occasioned by heat, smoke, and soot is not covered by the policy where the fire is confined within the furnace. This position involves the construction of the words of the policy “direct loss or damage by fire,” and leads to a consideration of what fires are within the contemplation of the policy. No limitation is placed upon the word “fire” by the language of the policy itself, but it is said that “contracts of insurance are to be construed according to the sense and meaning of the terms which the parties have used, and, if they are clear and unambiguous, the terms are to be taken and understood in their plain, ordinary, and proper sense.” No doubt this is the general rule, but it must also be remembered in applying the rule that this and other courts have construed contracts of insurance favorably to the insured. Karow et al. v. Continental F. Ins. Co., 57 Wis. 56, 15 N. W. 27, 46 Am. Rep. 17;Brady v. North Western Ins. Co., 11 Mich. 425; May on Insurance (3d Ed.) 402; Peters et al. v. Warren Ins. Co., 14 Pet. 99, 10 L. Ed. 371. Appellant insists that a fire confined within the limits of a furnace, although producing damage by smoke and heat, is not a fire within the meaning of the policy in question, and relies mainly upon the case of Austin v. Drew, 4 Camp. 361. In that case the plaintiff was the owner of a sugar factory several stories high with pans on the ground floor for boiling sugar and a stove for heating. A flue extended to the top of the building with registers on each floor connecting with the flue to introduce heat. Because of the negligence of a servant in not opening a register at the top of the flue, or chimney, used to shut in the heat during the night, the smoke, sparks, and heat from the stove were intercepted, and, instead of escaping through the top of the flue, were forced into the rooms, in consequence of which the sugar was damaged. The flames were confined within the stove and flue, and no actual ignition took place outside thereof, and it was held that the loss was not covered by the policy. The Lord Chief Justice said that there was no more fire than always existed when the manufacture was going on, and which continued to burn without any excess. The case seems to turn upon the point that the fire was the usual and ordinary fire, never excessive and always confined within its proper limits. We shall briefly refer to other cases cited by appellant on this point.

In German American Ins. Co. v. Hyman, 42 Colo. 156, 94 Pac. 27, 16 L. R. A. (N. S.) 77, the loss was caused by an explosion produced by lighting a match, where the policy contained a provision that the insurers should not be liable for loss by explosion unless fire ensues, and in that event for the damage by fire only. Samuels v. Continental Ins. Co., 2 Pa. Dist. R. 397, was a claim for damages caused by smoke and soot from a lamp whose flame flared up above the lamp. United L. F. & M. Ins. Co. v. Foote et al., 22 Ohio St. 340, 10 Am. Rep. 735, was a case of explosion excepted from the policy, and it was held that the fire was caused by the explosion; therefore the loss was occasioned by explosion. Renshaw v. Fireman's Ins. Co., 33 Mo. App. 394, is also an explosion case caused by ignition from a burning gas jet, and it was held that, where the explosion is the direct result of the antecedent fire, the policy covers it, but, where the explosion is not occasioned by the fire, there is no liability for the result of the explosion. In the one case the fire causes the explosion, and in the other the explosion causes the fire. Briggs et al. v. North A. & M. Ins. Co., 53 N. Y. 446, is a case where the explosion was before the fire, and not caused by the fire. Transatlantic F. Ins. Co. v. Dorsey, 56 Md. 70, 40 Am. Rep. 403, was a case of explosion, and the main question was whether the fire was the direct cause of the explosion. 1 Wood on Insurance (2d Ed.) § 103, it is true lays down the general rule that no liability arises where the fire is confined within the limits of the agencies employed, referring to the case of Austin v. Drew, supra, with the observation that the doctrine of that case had been considerably misconceived by courts and text-writers. Gibbons v. German Ins. & S. I., 30 Ill. App. 263, was a case of damage caused by the escape of steam. Case v. Hartford F. Ins. Co., 13 Ill. 676, discusses Austin v. Drew, 4 Camp. 361, and discards the idea that there can be no loss by fire without actual ignition. Millaudon v. New Orleans Ins. Co., 4 La. Ann. 15, 50 Am. Dec. 550, is a case where the damage was caused by the explosion of a steam boiler, while in Waters v. Merchants' L. Ins. Co., 11 Pet. 213, 9 L. Ed. 691, an explosion of gunpowder is held to be a loss by fire where the thing exploded was on fire. American Towing Co. v. German F. Ins. Co., 74 Md. 25, 21 Atl. 553,...