Coryell v. Old Colony Insurance Company

• Decision Date: 05 April 1929
• Docket Number: 26547
• Citation: 224 N.W. 684,118 Neb. 303
• Parties: L. L. CORYELL, APPELLANT, v. OLD COLONY INSURANCE COMPANY ET AL., APPELLEES
• Court: Nebraska Supreme Court

224 N.W. 684

118 Neb. 303

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

No. 26547

Supreme Court of Nebraska

April 5, 1929

APPEAL from the district court for Lancaster county: JEFFERSON H BROADY, JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

Where a policy of insurance covers " direct loss or damage by fire" and the loss and damage for which recovery is sought was occasioned by soot, smoke and volatilized oil accompanying them and escaping from the open door of an oil burning furnace at all times operated and controlled by the insured alone; where the flames from the furnace extended outside the open door thereof but did not ignite or burn any of the property insured and were extinguished as soon as the door was closed and the oil turned off; and where it is not shown that the furnace door was opened accidentally, by an explosion or otherwise; held, that the loss and damage was not contemplated by the contract of insurance and the insured cannot recover.

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. Affirmed.

Good J., and Redick, District Judge, dissenting.

Sterling F. Mutz, for appellant.

C. C. Flansburg, contra.

Heard before GOSS, C. J., DEAN, GOOD, THOMPSON, EBERLY and DAY, JJ., and REDICK, District Judge. GOOD, J., dissenting, REDICK, District Judge, concurs in this dissent.

OPINION

GOSS, C. J.

This was an action to recover on fire insurance policies. A jury was waived and the case was tried to the court. Judgment was entered in favor of the defendants. Plaintiff appealed.

In his petition plaintiff alleged that he was the owner of the dwelling-house in question; that he insured it by the policies set out; that he performed all the terms and conditions to be performed on his part; that while the insurance was in effect he "suffered a loss by fire, said property having been burned and smoked to the plaintiff's damage in the sum of $ 1,000;" and that upon notice of loss the defendants waived proof of loss, denied liability and advised plaintiff to bring suit.

The defendants demurred to the petition in the first paragraph of the answer; and in the second and last paragraph thereof, without waiving the demurrer, the defendants admit their corporate existence, admit their right to do business in Nebraska, admit the issuance of the policies, and deny each and every other allegation contained in the petition.

On the trial the parties stipulated in writing some facts definitely, and then stipulated that if plaintiff were called as a witness he would testify to certain things fully set out, and that these things should be given the same force and effect as if he were sworn and testified. The written stipulation was received in evidence without objection. Among these things so stipulated to be considered as testified to by the plaintiff it appeared: That the house was heated by a furnace installed for that purpose and having an oil burner, controlled by a thermostat set at 73 degrees and not changed at any time under consideration; that about midnight on April 14, 1926, plaintiff went to his furnace in the basement, inspected it and found it was working properly and made no adjustment of it; that he awakened about 5 o'clock in the morning of April 15, observed smoke, soot and oil therefrom over the house, went to the furnace to ascertain the cause and "found that the furnace door, which he had left closed upon retiring about midnight, had been opened by some process in the absence of plaintiff, the cause of said door being open being unknown to plaintiff;" that the flames from the oil burner were shooting out of the open door from three to five feet, striking the asbestos covered heat pipes near the ceiling of said basement room, "blackening and charring the covering on the heat pipes;" that with an iron bar plaintiff shut the furnace door; that the plaintiff then turned off the oil and the fire subsided; that the soot, smoke and oil therefrom which had accumulated over the rooms of the house required redecoration of the house and time and labor; that the damage was in the sum of $ 1,000; and that the flames "did not ignite or burn any other part of the house than the asbestos covering on the pipes" aforesaid.

Plaintiff was present at the trial and testified supplementing his testimony given in the stipulation. On direct examination he testified that the furnace door was closed when he retired between midnight and 1 o'clock.

On cross-examination he testified that he always opened the furnace door at night to inspect the furnace and that he did so on this occasion. The door fastened by a "lip on the edge of the door that traveled up an inclined plane and dropped in a slot." He thinks the lip was in the slot when he left it that night. On further cross-examination he answered in the affirmative a question framed to show that he had no independent recollection of closing the door, only because he always did so and thinks he did it that night. He gave his theory that the door was opened by some force from the inside. His judgment was that the volume of flame was greater when he shut the door in the morning than at night, greater than when it was burning around the ignition plate. On redirect examination he testified that he was very sure he closed the door at night. There was no expert testimony nor any evidence based on experience or observation to indicate that such a furnace door might be opened accidentally from the inside or by any force operating from the inside. On cross-examination plaintiff admitted that nothing was burned in the furnace room, stating that it was fireproof.

The defendants claim (1) that the damage was caused by the plaintiff's own negligence in leaving the door open; and (2) that the fire was a "friendly" fire and not a "hostile" fire.

The general rules of pleading relating to contracts apply to actions on insurance contracts. It was incumbent on plaintiff to allege that he performed all the terms and conditions precedent on his part. 26 C. J. 492, sec. 693. This he did. "The general requirement as to averring performance of conditions and warranties relates only to affirmative warranties and conditions precedent; it is not necessary to negative the occurrence of facts which would constitute a breach of a promissory warranty or condition subsequent." 26 C. J. 493, sec. 693; 14 R.C.L. 1431, sec. 591. "He need not as a rule anticipate affirmative defenses either by positive or by negative allegations." 26 C. J. 496, sec. 701.

No negligence of plaintiff, either by reason of leaving the furnace door open or otherwise, was pleaded by the defendants in their general denial. The judgment of the trial court is general. It contains no specific findings of fact, nor does the bill of exceptions show any opinion or statement from the court as to the ground on which he rendered judgment. In view of the pleadings and the rules ordinarily governing them and of the general trend of the evidence in the case, we infer that the judgment was based upon a conclusion of the trial court that, under the law and the evidence, the defendants were free from liability because the fire had its origin in the furnace and because this particular situs and this particular fire constituted the source from which the damaging elements emanated. However, in stating that negligence was not pleaded as a defense, we do not wish to be understood as eliminating the proper force of the evidential facts relating to the furnace door being open when the damage was done, and that this was the means by which the fire, smoke, and other elements complained of, reached the interior of plaintiff's house, instead of going up the chimney.

In policies insuring against "direct loss or damage by fire," as was the case here, an actionable fire is frequently called a "hostile fire" to distinguish it from a nonactionable fire, which is called a "friendly fire," that is, a fire intentionally built within a stove or furnace or in some other proper place contemplated by both the insured and insurer. The general rule seems to be that the insurer is not liable for the consequences of a friendly fire so long as the fire itself is confined within the limits of the proper agencies employed for the purpose; and if a friendly fire get out of bounds so as to ignite property insured and thus to damage it, or so as to cause a second fire with consequent damage by reason of such secondary fire, it will be considered a hostile fire, for whose damages the insurer is liable. 26 C. J. 340, secs. 429, 430; 14 R.C.L. 1216, sec. 396; 6 Cooley's Briefs on Insurance, 4933-4935.

In Way v. Abington Mutual Fire Ins. Co., 166 Mass. 67 43 N.E. 1032, where the damage was caused by the soot in a chimney becoming ignited, it was called a hostile fire. In the opinion the court cited the English case of Austin v. Drew, 4 Camp. (Eng.) 360, often...