Cook v. Continental Ins. Co.

• Decision Date: 01 November 1928
• Docket Number: 3 Div. 846.
• Citation: Cook v. Continental Ins. Co., 220 Ala. 162, 124 So. 239 (Ala. 1928)
• Parties: COOK v. CONTINENTAL INS. CO.
• Court: Alabama Supreme Court

124 So. 239

220 Ala. 162

COOK v. CONTINENTAL INS. CO.

3 Div. 846.

Supreme Court of Alabama

November 1, 1928

Rehearing Granted June 20, 1929.

Further Rehearing Denied Oct. 31, 1929.

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Action on policy of fire insurance by Marie B. Cook against the Continental Insurance Company.Judgment for defendant, and plaintiff appeals.Reversed and remanded on rehearing.

SayreThomas, and Bouldin, JJ., dissenting.

Hill Hill, Whiting, Thomas & Rives, of Montgomery, for appellant.

J. Carter Cook, of Atlanta, Ga., and Steiner, Crum & Weil, of Montgomery, for appellee.

SAYRE, J.

Appellee insured appellant's property against loss or damage by fire.The policy is said by the parties to have been in the standard form.By its terms it insured appellant"against all direct loss or damage by fire, except as hereinafter provided."A later provision was expressed in this language: "This company will not be liable for loss caused directly or indirectly by invasion, insurrection, riot, civil war or commotion, or military or usurped power, or by order of any civil authority; or by theft, or by neglect of the insured to use all reasonable means to save and preserve the property at and after a fire or when the property is endangered by fire in neighboring premises; or (unless fire ensues, and, in that event, for the damage by fire only) by explosion of any kind."

A fire was in progress and had consumed many buildings and was being blown by the wind in the direction of appellant's building.When it had reached the International Truck Company's building on the corner of Bibb and Coosa streets, which was diagonally across the street intersection from appellant's property and 150 feet distant, the fire department of the city of Montgomery, with a view to limiting the spread of the flames, caused a charge of dynamite to be exploded under the truck company's building.The concussion caused the damage for which appellant claims compensation under the policy.There is no claim for damages by combustion.In the trial courtappellee, defendant, had the general charge.

The facts are undisputed; the question of liability is one for the court.The question of law presented is whether appellant's loss was a "direct loss or damage by fire" within the meaning of the contract between the parties.The intention of the parties must prevail.If that is clear, the courts have no authority to change the contract in any particular (Day v. Home Ins. Co.,177 Ala. 607, 58 So. 549, 40 L. R. A. [N. S.] 652); if doubtful, the court will lean to that meaning most favorable to the insured, remaining, however, at all times within the terms of the contract, which is to say: "Where the provisions of a policy of indemnity are reasonably susceptible of two constructions, consistent with the object of the obligation, one favorable to the assured, and the other favorable to the assurer, that will be adopted which is favorable to the assured."Travelers' Ins. Co. v. Plaster,210 Ala. 610, 98 So. 909;Illinois Automobile Ins. Exch. v. Southern Motor Sales Co.,207 Ala. 265, 92 So. 429, 24 A. L. R. 734, and authorities cited.

The parties here contracted against "direct loss or damage by fire."In other words, their contract covered proximate loss or damage by fire.Proximate cause, as used in different relations, has provoked much discussion.This court in Western Assurance Co. v. Hann,201 Ala. 376, 78 So. 232, quoted with approval fromLynn Gas Co. v. Meriden Fire Ins. Co.,158 Mass. 570, 33 N.E. 690, 20L. R. A. 297, 35 Am. St. Rep. 540, as follows:

"The active efficient cause that sets in motion a train of events which brings about a result without the intervention of any force started, and working actively from a new and independent source, is the direct and proximate cause referred to in the cases."

That definition might be enough to settle this controversy in appellee's favor, for the use of dynamite in the circumstances stated discloses an intervening force started and working from a new and independent source.But the parties, having in mind, evidently, some such question as that here raised, undertook, by way of specific exception, further definition of the liability assumed by appellee in this wise (omitting parts immaterial to this inquiry and rearranging material parts in a more orderly fashion): The company will not be liable for loss caused directly or indirectly by explosion of any kind unless fire ensues, and, in that event, for the damage by fire only.This provision is reasonably clear to the conclusion that would exclude liability on the part of appellee in the state of facts shown by the uncontradicted evidence.Most likely it was cast in the form now in question in order to meet some decisions in which insurance companies were held liable for all damages caused by explosions incident to fires.At any rate, the New York Court of Appeals, considering a policy in terms identical with those now in question, so wrote and held, and that the insurance company was thereby relieved from liability for all loss caused directly or indirectly by explosion of any kind and necessarily, therefore, from a loss by concussion caused by the explosion in a neighboring building, whether the explosion be brought about by a lighted match, a fire, or other cause.In the case just now referred to, the fire which caused the explosion fell within the class of "hostile fires" mentioned by appellant in her brief.Hustace, v. Phenix Ins. Co.,175 N.Y. 292, 67 N.E. 592, 62 L. R. A. 651.

The authorities which deal with liability under policies like that here under consideration hold that none is imposed by facts such as are here in evidence.Westchester Fire Ins. Co. v. Bell,151 Ga. 191, 106 S.E. 186, 13 A. L. R. 880;Hustace v. Phenix Ins. Co., supra;Bird v. St. Paul F. & M. Ins. Co.,224 N. Y. 47, 120 N.E. 86, 13 A. L. R. 875;Heuer v. Northwestern National Ins. Co.,144 Ill. 393, 33 N.E. 411, 19 L. R. A. 594;German Fire Ins. Co. v. Roost,55 Ohio St. 581, 45 N.E. 1097, 36 L. R. A. 236, 60 Am. St. Rep. 711;6 Cooley's Briefs on Ins.(2d Ed.) 4955-4961.

Affirmed.

THOMAS, BOULDIN, and BROWN, JJ., concur.

On Rehearing.

BROWN J.

This is an action on a policy of fire insurance, whereby the defendant insured the plaintiff's building, referred to in the evidence as "Goree-Norris building,""against all direct loss or damage by fire, except as hereinafter provided, to an amount not exceeding forty-five hundred and no/100 Dollars."

The facts are conceded to be without dispute, and for the purposes in hand may be stated to be: On June 4, 1927, a fire originated in the business district of the city of Montgomery some distance from plaintiff's building, and fanned by a strong wind, before the explosion of a charge of dynamite by the fire department as a means of checking the fire, had traveled several hundred feet toward the east, consuming everything in its path, in width about 300 feet, and plaintiff's building, which was in the direct path of the fire, had caught from sparks several times.Two automobiles inside the building had been burned, and the top of a telephone pole, located within 20 feet of the plaintiff's building, had been burned off.The witness Spencer, who occupied the Goree-Norris building, testified, to quote from the record, "that at the time of the explosion he was on top of the roof of the Goree-Norris building; *** that at the time of the explosion the wind and the fire were raging kinder toward the Goree-Norris building; that the Goree-Norris building caught fire on top; that it was on fire before the explosion; that he was on top of the building putting it out; that it had caught at least five or six times; that it was blazing up there; that he put it out with a hose; that it was so hot on top that the fire blistered his face; that there were automobiles in the building; that two of the automobiles in the building caught fire and the tops were burned off; that this was on the inside of the building and was just before the explosion; that fire was raging at the time of the explosion; that after the explosion it looked like the whole fire just went out, just dropped down where the explosion was.This building had two walls.That before the explosion and at the time of the explosion the fire was leaping across to the Goree-Norris building and leaping everywhere.It was leaping from the building that was dynamited, coming toward the Goree-Norris building."

Chief Nixon of the fire department testified, referring to the International Truck Company building that was dynamited: "It was just like a tar-kiln and smoking all over but the fire hadn't broke out.*** This building never blazed out but it was a fire all over.In fact, you couldn't get into the building, but it didn't burn there anywhere-didn't blaze up."

This witness further testified, in respect to the Goree-Norris building being in the direct course the fire was taking: "Oh, yes, the Goree-Norris building and the other one too, because the flames were leaping up, we had flames everywhere and it looked like the whole thing was going to burn, and if the corner building (the one dynamited) had blazed out, you understand, there is no telling where it would have leaped to, because the high building, that tall building was just fixing to break out."

The appellant's building is located 150 feet from the International Truck Company's building on the corner of Bibb and Coosa streets, and during the progress of the fire the fire department of the city, for the purpose of checking the fire, caused a charge of dynamite to be exploded under the truck company's building, and by the concussion from the explosion plaintiff suffered a...