Coryell v. Old Colony Insurance Company

• Decision Date: 28 February 1930
• Docket Number: 26547.
• Citation: 229 N.W. 326,118 Neb. 312
• Parties: L. L. CORYELL, APPELLANT, v. OLD COLONY INSURANCE COMPANY ET AL., APPELLEES
• Court: Nebraska Supreme Court

229 N.W. 326

118 Neb. 312

L. L. CORYELL, APPELLANT, v. OLD COLONY INSURANCE COMPANY ET AL., APPELLEES

No. 26547.

Supreme Court of Nebraska

February 28, 1930

Syllabus by the Court.

The question involved herein is whether the fire insurance policies, which are made the basis of this action, cover the fire involved, that is, whether such fire was what is known in insurance law as " friendly," by reason of which no recovery can be had, or " hostile," by reason of which recovery may be had. Under the facts reflected held to be the latter, and recovery granted.

A " friendly" fire is one that remains confined in the place intended. A " hostile" fire is one not so confined.

Our holding in this case, reported 118 Neb. 303, 224 N.W. 684, is set aside.

Appeal from District Court, Lancaster County; Broady, Judge.

Action by L. L. Coryell against the Old Colony Insurance Company and another. Judgment for defendants, and plaintiff appeals. Reversed, and cause remanded with directions.

Setting aside judgment in 224 N.W. 684.

Goss C. J., and Eberly and Day, JJ., dissenting.

Sterling F. Mutz, of Lincoln, for appellant.

C. C. Flansburg, of Lincoln, for appellees.

Heard before GOSS, C. J., ROSE, DEAN, GOOD, THOMPSON, EBERLY and DAY, JJ. GOSS, C. J., EBERLY and DAY, JJ., dissenting.

OPINION

THOMPSON, J.

This is an action based on certain fire insurance policies issued to the plaintiff, appellant, by the defendants, appellees, respectively, to recover $ 1,000, a reasonable attorney's fee and costs, for loss and damage caused by fire, smoke, and soot, to the property covered by such policies. The issue was as to whether the fire, which is claimed to have given rise to such alleged right of recovery, is one which comes within the provisions of the policies. The trial court determined it did not, to reverse which finding the plaintiff appeals.

It is our conclusion from an examination of the pleadings that they do not put in issue negligence or any wrongful act on the part of the plaintiff; that the petition is in usual form in such cases, and is not vulnerable to the demurrer interposed by way of the answer. It might here be said, further, that we have examined the evidence and conclude that, even if the pleadings had presented the issue of negligence or wrongdoing on the part of plaintiff, the same would not find support in the record. Also, we are convinced that, if the fire was one covered by the policies, the plaintiff is entitled to recover of the defendants the sum of $ 1,000, together with interest thereon, attorney's fees and costs, as prayed. As to whether or not the fire was one coming within the scope and intent of the policies depends upon the proper application of the law to the facts reflected by this record, which are, in substance, as follows: There are four policies involved, all in Nebraska standard form, and, so far as material for our consideration, covered the dwelling house of plaintiff and the household and personal effects therein contained. Three of such policies insured against "all immediate and direct loss or damage by fire," and the fourth against "all direct loss or damage by fire." The dwelling was of two-story and basement construction, the basement being fireproof. On the date in question this dwelling was equipped with a hot air heating apparatus, commonly known as a Quaker furnace, with hot and cold air pipes leading to all parts of the house. In such furnace there was installed a Sun gravity oil burner, supplied with an automatic thermostat, trip bucket, and other ordinary equipment. The specific gravity of the oil used was 38-40 Baume. In this furnace the oil is fed on a hot plate resting at the base of the firebox, where it vaporizes and then ignites; and thus the necessary heat is generated, and by means of the hot air pipes is distributed to the different parts of the building, as is, in a somewhat similar manner, the cold air through the cold air pipes. At about 12 o'clock on the night in question, plaintiff, as was his custom, went to the basement, opened the coal door of the furnace (in size about 12 by 16 inches), glanced in, observed nothing unusual in its operation, closed the door, which fastened by a "lip on the edge of the door that traveled up an inclined plane and dropped in a slot," and then retired to his room in the second story. Early the following morning he awakened, arose, and observed smoke, soot and oil over the rooms and personal effects. He then went to the basement to ascertain the cause, and on arriving found the door of the furnace open, which he had closed at midnight, and which had been opened by some process unknown to him in his absence. The flames, oil, soot and smoke from such oil burner were shooting out of the furnace door, to its full width, a distance from the door of from three to five feet, striking the ceiling and the asbestos-covered heat pipes near the ceiling, blackening and charring such covering. Thereupon plaintiff procured an iron bar, closed the furnace door, and turned off the oil, and on his having done so the fire subsided. The aforementioned smoke, soot, and vaporized oil permeated the entire house. The flames shooting out of the door were greater in volume than those which plaintiff had seen in the firebox at midnight. While plaintiff testified that he did not hear any explosion, it was his belief that force from the inside of the furnace opened the door, because he was sure he closed the door before retiring. No part of the furnace was broken. The loss and damage sustained by plaintiff, by reason of the foregoing, were as by him alleged in his petition. While others of the household had access to the furnace, plaintiff was the only one who exercised such privilege.

Counsel for these respective parties have, with discriminating care both by way of authorities cited and argument, presented their views of the issues involved. It is the contention of defendants that the base of the fire in fact rested upon the evaporating plate, and however far it may have extended from this plate, even as in this case, it is a "friendly" fire, and that the combustion all occurred inside the furnace, where it was intended it should. The plaintiff insists that the fire was "unfriendly" or "hostile" from the point where it passed from the furnace, if not from the time it passed from the heated plate in the furnace, and that combustion occurred outside the furnace, and at a place where it was not intended it should. A careful consideration leads us to conclude that these contracts of insurance do not cover a loss or damage occasioned by fire, smoke, or soot, so long as the fire is kept confined in the furnace, the place intended; that while it thus remains it is a "friendly" fire, and if damages are caused by it while it is so confined recovery therefor cannot be had. This the parties seem to concede. Here, however, their contentions diverge. We take the reasonable view to be that when it is admitted, or clearly proved, that the loss and damage were caused from and by fire, after it had passed from the place of its intended confinement,...