Farmers Mut. Fire Ins. Co. of Knox County v. McMillan
| Decision Date | 27 October 1965 |
| Citation | 395 S.W.2d 798,217 Tenn. 125,21 McCanless 125 |
| Parties | , 217 Tenn. 125 FARMERS MUTUAL FIRE INSURANCE COMPANY OF KNOX COUNTY, Plaintiff in Error, v. F. E. McMILLAN et ux., Defendant in Error. |
| Court | Tennessee Supreme Court |
Louis Hofferbert, Knoxville, for plaintiff in error, Poore, Cox, Baker & McAuley, Knoxville, of counsel.
Charles Hyatt Brown, Knoxville, for defendant in error, Gilreath & Brown, Knoxville, of counsel.
This cause involves the construction of a fire insurance contract. The Trial Judge, without a jury, heard the cause upon stipulation of all facts and found against plaintiff in error (insurance company).
The insurance company issued a fire policy to defendants in error covering property not in an area protected by a public fire department. The closest fire department was a private fire department. On or about 4 August 1964 a fire, by lightning, occurred in this property and defendants in error called this private fire department. The private fire department answered the call and upon arrival finished extinguishing the smoldering material. The suit was for $325.00 of which $25.00 was for damage to the property and $300.00 for the cost of the services of the private fire department.
The only issue here is whether the insurance company would be liable for this $300.00 charge under its policy which provides coverage, for 'all direct loss by fire, lightning and extended coverage.'
The language in this phrase is not ambiguous. First Christian Church v. Hartford Mutual Ins. Co., 38 Tenn.App. 482, 276 S.W.2d 502 (1954). Then the phrase is to be construed giving the words their ordinary meaning, which is the meaning the average policy holder and insurer would attach to them. Ansley v. Travelers Ins. Co., 27 Tenn.App. 720, 173 S.W.2d 702 (1940); Minnick v. Federated Life Ins. Co., 53 Tenn.App. ----, 378 S.W.2d 189 (1963).
Construing this phrase, under these rules of construction, we do not think this language would convey to an average policy holder or insurer any thoughts in regard to a fire department. The thought here conveyed is, that property insured, is covered for all direct loss by fire, and this without regard to any fire department. As an example, if the property insured was in an area protected by a public fire department, and (1) the insured failed to call the fire department, or (2) called them and they failed to come, or (3) came too late; nevertheless under any of these possibilities the insurance company, under the language here at issue, would still be liable for all direct loss by fire. To hold this phrase would include the expense of calling this private fire department would be to read into this language something that is not there.
The plaintiff in error argues the term 'direct loss by fire' is synonymous with proximate cause and such was recognized in First Christian Church v. Hartford Mutual Insurance Co., supra. While such is mentioned in this case it is with neither approval or disapproval. We...
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