Fidelity Title & Trust Co. v. Peoples Natural Gas Co.

• Decision Date: 02 June 1892
• Docket Number: 144
• Citation: 150 Pa. 8,24 A. 339
• Parties: Fidelity Title & Trust Co., for use v. Peoples Natural Gas Co., Appellant
• Court: Pennsylvania Supreme Court

24 A. 339

150 Pa. 8

Fidelity Title & Trust Co., for use v. Peoples Natural Gas Co., Appellant

No. 144

Supreme Court of Pennsylvania

June 2, 1892

Argued October 29, 1891

Appeal, No. 144, Oct. T., 1891, from judgment of C.P. No. 1 Allegheny Co., June T., 1891, No. 161, on verdict for plaintiff in trespass, for negligence in causing damages by fire.

The action was brought in the name of "the Fidelity Title &amp Trust Co., trustees of the estate of Jas. Patterson deceased for use of Ins. Co. of North America," to recover from defendant the amount paid by the use plaintiff to the Fidelity Co. upon a policy of fire insurance on the Patterson block, in Pittsburgh.

The evidence, on the trial before SLAGLE, J., was to the effect that the use plaintiff and other insurance companies had issued policies on the Patterson block. On Oct. 19, 1887, an explosion of natural gas occurred there, which caused damage to persons and property by the explosion and by fire.

On Dec. 30, 1887, the following agreement was signed:

"It is agreed by and between the Fidelity Title & Trust Co. as trustee of the Patterson property, and The People's Natural Gas Co., as follows:

"The said first party in consideration of the payments hereinafter mentioned by the said second party to be made, do hereby release and acquit the said second party from and against all claims and demands of every kind of the said first party, arising out of or occasioned by the explosion in the Patterson block on Oct. 19, 1887, including claims for loss or suspension of rent by the tenants of said first party.

"In consideration of said release and acquittance, the said second party agrees to pay the sum of three thousand two hundred and fifty dollars ($3,250), payable one thousand dollars in cash on the signing of this agreement, and the balance in a negotiable note at six months, endorsed by J. N. Pew, the discount on said note to be paid on the signing of this agreement.

"And the said second party further agrees to cause, at its own expense, the entrance or approach to the Bijou Theatre, in the said Patterson block, to be fully repaired and the ornamentation and fixtures thereof to be restored, and in all respects to make said entrance and everything therewith connected in as good a condition as they were just before the said explosion on Oct. 19, 1887. The said work and repairs to be done and completed within thirty-five days from the date hereof. The said first party agrees to pay said second party ten per cent. of the actual cost of said repairs upon the payment by said second party of the note above referred to.

"It is understood that the foregoing settlement and release do not affect the claim of said first party against insurance companies for loss occasioned by fire, and which claim said first party shall be entitled to receive in addition to and independently of the sum paid by second party."

The agents of the Fidelity Title & Trust Co. appraised the total loss by fire at $1750.99, of which the proportionate share of the Ins. Co. of North America was fixed at $175.13. This amount with interest ($182.80) was recovered Oct. 19, 1888, against the Ins. Co. of North America (123 Pa. 523) after an unsuccessful attempt to interpose the above release as a defence.

Plaintiff in this case offered the insurance policy, proof of loss and record of former suit showing judgment and execution thereon. The court admitted this evidence to show the proceedings, verdict and payment, but not as fixing the amount of the liability of the defendant here.

James Wherry, one of the appraisers for the Fidelity Co., was then called, who testified to the effect that he with others had appraised the loss by fire at $1,750, that the result was arrived at by measurement and items, but that he could not now give items, and a memorandum containing them was lost.

George P. Hamilton, trust officer for the Fidelity Co., testified for the plaintiff as to the character of the damage by fire, but did not give any amount except to state the amount contained in the appraisement. He further testified that the appraisement as to fire and explosion was made by separate items, that it was submitted to Mr. Pew, the president of the People's Natural Gas Co., who reduced the estimate on the entire loss, and, after the Fidelity Co. accepted the modification, the amount of the fire loss that remained was $1750.99. The whole amount necessary to put the building in condition, less the fire loss, was estimated to be about $3,250. "Q. Didn't you tell Mr. Pew at the time these negotiations were pending that if he paid for the loss by the explosion he would be discharged by the company from the loss by fire? A. The understanding was that Mr. Pew, as far as the Fidelity Co. was concerned, was not to be held responsible. Mr. Pew's company was not to be held responsible for the fire loss; if we didn't succeed in getting the fire loss from the insurance company, why we had no right to recover from him; that was the understanding and he was so told. Q. That you would give up your right of action against the People's Co. provided he would arrange for the payment of loss by explosion? A. If he would pay the $3,250 we would acquit him of all the loss occasioned by the explosion, all liability to the Fidelity Company; that was the understanding." The witness further testified that the greatest loss in the Bijou entrance was caused by the explosion, and that was all repaired by the People's Gas Co., that was mostly an explosion loss, very little fire in there. The ten per cent., mentioned in the release, was paid by the Fidelity Co.

The policy of insurance, offered in evidence, contained the following:

"III. Prohibitions and circumstances and conditions under which this policy will become null and void. -- Gunpowder, fireworks, nitro-glycerine, phosphorus, naphtha, benzole, benzine, benzine varnish, camphene, spirit gas, gasoline, phosgene or burning fluid, or any similar inflammable fluid, are positively prohibited from being deposited, stored, kept or used in any building on which, or on the contents of which, there is any insurance under this policy, unless by special consent expressed in the body of the policy, naming each article specifically -- otherwise the insurance by this policy shall be void. . . ."

Witnesses testified that the natural gas was used for illuminating purposes, and that it was put into the old artificial gas pipes by the tenants.

The court charged, inter alia, that the former suit was "not conclusive as to the amount of the loss, nor even evidence as to that, against the People's Natural Gas Co. It was not a party to that suit, and therefore not bound by that judgment, and the record of that case is in no wise offered here as evidence of the liability of this defendant. It was offered and admitted simply for the purpose of showing that the Insurance Co. had been compelled to pay this money to the Fidelity Title & Trust Co., and that it was not a volunteer in making this payment. The Insurance Co., having paid that money to the Fidelity Title & Trust Co., the owner of the property, alleges that this fire was the result of the negligence of the People's Natural Gas Co., and, if that is so, it has a right to bring and maintain this action, provided it satisfies you that the fire originated from the negligence of the People's Natural Gas Co."

Plaintiff's point, which was affirmed, was as follows:

"1. By the release in evidence made by the Fidelity Title & Trust Co., trustee of the Patterson property, to the People's Natural Gas Co., the latter company asserted the existence of a claim for loss by fire resulting from the explosion in the Patterson block on Oct. 19, 1887, against the different companies having policies covering loss by fire to said block, the evidence shows that this plaintiff, the Insurance Co. of North America, was one of the companies which had a policy at the time on said block, and has paid the loss demanded from it. Therefore the People's Natural Gas Co. this defendant,...