First Christian Church v. Hartford Mut. Ins. Co.

• Decision Date: 20 April 1954
• Citation: 38 Tenn.App. 482,276 S.W.2d 502
• Parties: The FIRST CHRISTIAN CHURCH and Its Trustees v. The HARTFORD MUTUAL INS. COMPANY et al.
• Court: Tennessee Court of Appeals

Page 502

276 S.W.2d 502

38 Tenn.App. 482

The FIRST CHRISTIAN CHURCH and Its Trustees v. The HARTFORD MUTUAL INS. COMPANY et al.

Court of Appeals of Tennessee, Eastern Section.

April 20, 1954. ¹

Maupin, Berry & Coleman and S. J. Milligan, Greeneville, for plaintiffs in error.

F. H. Parvin, Greeneville, for defendants in error.

HALE, Judge.

This case is improperly styled. The plaintiff Church and its Trustees obtained a judgment against the defendant insurance companies which have perfected this appeal.

The question before us grows out of that part of the law on insurance relating to 'hostile' and 'friendly' fires, and, except for an incidental mention in Allied American Mutual Fire Ins. Co. v. Wesco Paving Co., 35 Tenn.App. 154, 243 S.W.2d 141, is of first impression in Tennessee so far as our reported cases are concerned.

The First Christian Church of Greeneville, herein called the insured, had policies of insurance with the Hartford Mutual Insurance Company, and New York Central Mutual Fire Insurance Company, herein called insurers, which covered 'all direct loss by fire' to the church building, and was on a 'church form' which included '* * * stationary heating * * *.'

On the night of Sunday, October 12, 1952, by what may be termed either accident or negligence, the heat generated by the coal furnished by the stoker was too great for the water in the boiler, with the result that the water was evaporated, and the boiler melted and rendered completely useless. The heat melted or burned off about five inches of the insulation on two wires leading to the thermostat control, the wooden wall at the rear of the furnace was blackened, and the paint was burned off the top part of the steel jacket covering the boiler. There is no evidence whatever of any outside fire or that the fire escaped from the fire box. Or, as stated by the Church's witness, Mr. Ricker, this damage was caused by the fact that there was fire and no water; that there wasn't a drop of water in the boiler after the fire; that the furnace would not have melted had there been any water in it.

There was no appreciable damage done to anything other than the furnace. There was no claim that the blackened wood had been charred. In short, the only evidence offered as to the damage related to the value of the furnace.

Under these circumstances it is evident that this was a 'friendly' as distinguished from a 'hostile' fire which caused the damage to the furnace.

The pleas of the insurers asserted this as a defense to the claim of the insured. Trial without a jury resulted in a judgment in favor of the insured. The insurers have perfected this appeal and have squarely presented this question now before us.

In Appleman's Insurance Law and Practice, Vol. 5, Sec. 3082, pp. 211-212, it is said:

'The distinction most commonly made by courts in considering contracts of fire insurance is that drawn between 'hostile' and 'friendly' fires. If the fire burns in a place where it is intended to burn, although damages may have resulted where none were intended, the fire is a friendly fire, and the insurer is not liable for damages flowing therefrom. A friendly fire refers to one which remains confined within the places intended, and refers to a fire in a furnace, stove or other usual place. A hostile fire, on the other hand, refers to one not confined to the place intended, or one not intentionally started; and it is generally considered to refer to such a fire which, if it had pursued its natural course, would have resulted in a total or partial destruction of the insured property. When a friendly fire escapes from the place it ought to be to some place where it ought not to be, causing damage, it becomes a hostile fire for which the insurer is liable.'

The law as stated in 45 C.J.S., Insurance, § 809, pp. 861-862, is:

'While there seems to be authority to the contrary, it must be a hostile fire, that is, one which becomes uncontrollable or breaks out from where it was intended to be, and becomes a hostile element, and, where there is such a fire, recovery may be had for resulting losses or damages with regard to which there has been no actual ignition, such as a loss or damage caused by smoke and soot, or by heat.

'Where the fire is a friendly one, that is one which is employed for the ordinary purpose of lighting, heating, or manufacturing, and is confined within its usual limits, as in case of a blaze produced by lighting a match, or a gas jet or lamp, it is not a fire within the usual terms of a policy, and recovery cannot be had for loss or damage caused thereby, such as damage caused by heat which does not result in ignition, or by smoke or soot.'

(Note. The 'authority to the contrary' mentioned in the first paragraph of the foregoing quotation is the Louisiana Court of Appeals case of Salmon v. Concordia Fire Ins. Co. of Milwaukee, 161 So. 340, cited by the insured and hereinafter referred to.)

American Jurisprudence, Vol. 29, p. 767, 'Insurance', Sec. 1016, says:

'A distinction is usually drawn by the courts between a friendly and a hostile fire, and it is held that if fire is employed as an agent, for the ordinary purpose of heating the insured building. * * * the insurer is not liable for the consequences there, so long as the fire is confined within the limits of the agencies employed * * *.

'If the fire is a hostile one, damage from heat is within the coverage of a fire insurance policy although actual ignition does not take place; and a recovery may be had under a policy insuring against loss happening by fire, for damage resulting from an adjoining burning house, although there was no actual ignition of the property insured.'

The Texas case of Reliance Ins. Co. v. Naman, 118 Tex. 21, 6 S.W.2d 743, 744, contains a very interesting discussion of friendly and hostile fires. A housewife had hidden some jewelry in a hat box for safekeeping, but one of her servants, thinking it was trash, threw the box in the furnace where it was destroyed. The insurer was absolved from liability, the court saying:

'The policy having insured the appellee 'against all direct loss or damage by fire,' it becomes important to determine whether or not the loss in this case has been sustained by 'fire' within the meaning of that contract. It is uniformly held that the loss must be by a hostile fire; that is, one which becomes uncontrollable or breaks out from where it was intended to be, and becomes a hostile element.' (Citing authorities.) Further,

'Where the fire which occasions the damage is confined to the usual and ordinary place, such as the range, grate, or furnace, it is usually denominated a friendly fire, and as such not a fugitive one within the contemplation of the contract of insurance.'

In the subsequent case of Progress Laundry & Cleaning Co. v. Reciprocal Exchange, Tex.Civ.App., 109 S.W.2d 226, 227, there was involved the liability of the insurer for damages done to a boiler by a friendly fire. Said the court:

'In Reliance Ins. Co. v. Naman, 118 Tex. 21, 6 S.W.2d 743, 745, the Supreme Court of Texas held that, when a fire which occasioned damages is confined to the usual and ordinary place, such as a fire burning in a furnace, or a stove, or a lamp, where it was intended to burn, it is considered a friendly fire, and damages that may be caused by such a fire are not considered to be within the terms of an ordinary insurance policy. The following language of the Supreme Court in that case is helpful in suggesting illustrations of friendly fires not insured against, viz.: 'If the fire in the furnace was such a fire as the company insured against, then it would be liable for any direct loss or damage therefrom, and it would follow the insured could recover his damage for loss occasioned by the cracking of the plaster in the furnace basement from the heat of the furnace, for the cracking of the paper on the walls from the heat of the grate, and for damage to the decoration and draperies through smoke and soot from the furnace or chimney place, and even for the replacement of furnace, grate, and range oven when burned out, for those clearly would be losses directly due to the respective fires. Those are not extreme illustrations, but liability in each instance would follow if the fire in this case be held to be within the policy.'

'In American Towing Co. v. German Fire Insurance Co., 74 Md. 25, 21 A. 553, plaintiff sued for damages to a boiler. The boiler was damaged due to the absence of water. It was there determined that the plaintiff could not recover because the damages resulted from a friendly fire. So, also, is the case of McGraw v. Home Ins. Co. of New York, 93 Kan. 482, 144 P. 821, Ann.Cas.1916D, 227; there, the plaintiff sought judgment upon a fire insurance policy on account of injury done to a steam boiler by fire when the boiler was supplied with an insufficient amount of water. The court held that no liability attached to the insurance company because of the intended application of the fire to the boiler, and that the loss or damage was occasioned not by a hostile element (the fire), but was due to negligence of the boiler operator in allowing the water to become exhausted. In that case, the fire was a friendly agency, intentionally applied and confined in the usual and customary place, within the contemplation of the policy of insurance. There the damage to the boiler was the direct result of negligence of the operator of the boiler, and in no sense attributable to an uncontrollable or hostile agency. To the same effect is the holding of the Waco Court of Civil Appeals in the case of City of New York Ins. Co. v. Gugenheim, 7 S.W.2d 588.'

The case of Spare v. Glens Falls Ins. Co., 137 Conn. 105, 75 A.2d 64, 65, involved a situation similar to that presented by the instant record. Said the Court:

'The only fire involved in the incident which constitutes the basis of this action was the oil fire which burned within the...