Ellis v. Norwich Union Fire Ins. Soc.

• Decision Date: 21 May 1927
• Citation: 156 N.E. 696,259 Mass. 450
• Parties: ELLIS v. NORWICH UNION FIRE INS. SOC., Limited.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

259 Mass. 450

156 N.E. 696

ELLIS

v.NORWICH UNION FIRE INS. SOC., Limited.

Supreme Judicial Court of Massachusetts, Suffolk.

May 21, 1927.

Report from Superior Court, Suffolk County; George A. Flynn, Judge.

Action of contract by Helen E. Ellis against the Norwich Union Fire Insurance Society, Limited. Verdict for defendant. On report. Judgment for plaintiff.

C. S. Bolster, of Boston, for plaintiff.

Walter L. Came, of Boston, and Donald M. Came, of Brookline, for defendant.

SANDERSON, J.

This is an action of contract to recover on three policies of fire insurance, in the Massachusetts standard form prescribed by G. L. c. 175, § 99, insuring a dwelling of the plaintiff, in Belmont, against ‘loss or damage by fire originating from any cause except invasion, foreign enemies, civil commotions, riots or any military or usurped power whatever.’

At about 8:30 in the morning the plaintiff, intending to make a soup, put into an aluminum pot the necessary ingredients therefor and placed it over a ‘fairly hot’ flame on the gas stove in the kitchen. She then did some work about the house and went to Boston, forgetting that the pot was on the stove. A neighbor, who saw dense smoke coming from the open windows of the house, rang the fire alarm at about 11 o'clock. A witness connected with the Belmont fire department, hearing the alarm, went to the plaintiff's house, and saw in the kitchen where the smoke was thick a pot, from under the cover of which smoke was forcing itself. This pot was then on the gas stove over the gas flame. He removed the cover and saw therein a solid black crinkled mass, but saw no flame except that from the gas burner. The pot and contents, substantially as they were when the plaintiff returned to her home soon after the firemen had gone, were introduced in evidence. A duly qualified expert in physics and chemistry testified that, in his opinion if the materials described were put in a pot similar to the one exhibited, and placed over a fairly hot gas flame for the period of time in question, there probably would be a flame inside the pot if there were no cover on it, and if the cover were on there probably would be a flame from the gases as they emerged from the pot, which flame in either event would be separate and apart from the flame of the gas stove. Evidence of damage to the house by smoke was introduced. In compliance with the direction of the trial judge the jury returned a verdict for the defendant and the case was reported to this court with an agreement relating to the entry of judgment.

The plaintiff does not contend that she can recover under these policies if the only fire was the flame of the gas stove, but that she has a right of action if she proves damage from a separate and distinct fire either in the pot or from the gases escaping therefrom.

Upon the evidence the jury could have found that a fire separate and distinct from the gas flame...