First Nat. Bank of Boone v. Royal Indem. Co.
| Decision Date | 07 March 1922 |
| Docket Number | 34068 |
| Citation | 186 N.W. 934,193 Iowa 221 |
| Parties | FIRST NATIONAL BANK OF BOONE, Appellant, v. ROYAL INDEMNITY COMPANY, Appellee |
| Court | Iowa Supreme Court |
Appeal from Boone District Court.--R. M. WRIGHT, Judge.
ACTION at law upon a policy of boiler insurance. There was a trial to a jury. Verdict directed for the defendant, and judgment against plaintiff for costs. Plaintiff appeals.
Reversed.
W. W Goodykoontz and T. J. Mahoney, for appellant.
Sullivan & Sullivan and Dyer, Jordan & Dyer, for appellee.
On April 1, 1919, the defendant corporation, carrying on a business of boiler insurance, issued to the plaintiff a policy by the terms of which it agreed with the insured that:
"If there shall occur within the terms mentioned in Statement 8 of said schedule [hereinafter quoted] an explosion, rupture, or collapse as hereinafter defined of one or more of the boilers, vessels, or other apparatus described in Statement 6 of said schedule, then the company will indemnify the insured by paying to or for him up to a total amount not exceeding that stated in Statement 10 of the said schedule, for each such occurrence."
The promise is followed by an enumeration of "conditions," of which the following only have any bearing upon this controversy:
Following this is a series of "definitions," as follows:
The schedule frequently referred to in the policy is entitled "Schedule of Statements," and, so far as material upon this appeal, they consist of statements of (1) name of the insured; (2) post-office address; (3) business; (4) ownership of the boiler; (5) * * *; (6) description of the boilers covered by the insurance; (7) * * *; (8) the term of the insurance from April 1, 1919, to April 1, 1922; (9) premium for boilers described under Statement 6, $ 56. "Premium charge for coverage of cracks and fractures in cast-iron boilers (see Condition 3, Section e), $ 64; (10) the amount of insurance shall be $ 5,000."
On March 3, 1920, and while the policy was still in full force, the plaintiff alleges that the boilers so insured were damaged and destroyed by rupture, collapse, cracks, and fractures, to the injury and loss of the plaintiff to the amount of $ 2,900; and that defendant, upon due notice and proof of loss, neglects and refuses to pay the promised indemnity. Answering this claim, the defendant admits issuing the policy in suit, but denies there has been any loss or damage to the insured property for which it is under any obligation to indemnify the plaintiff. It further pleads that, by the terms of the policy, loss or damage due to fire is excepted from the risk insured against, and that the loss or damage for which plaintiff demands recovery was, in fact, due solely to fire.
For the trial of these issues, a jury was impaneled, and testimony offered. At the close of the evidence, the court directed a verdict for the defendant, and plaintiff appeals.
On the part of the plaintiff, the evidence tended to show that the boiler in question was located in a room or excavation under the sidewalk adjacent to the plaintiff's bank building. It was of a down draft, low pressure type, made to withstand a pressure of 15 pounds, but in actual use, was never subjected to a pressure of more than 5 pounds. The weather on the day of the loss, March 3, 1920, had been mild, and only a low fire had been maintained. One Hotchkiss was the custodian of the building, and had the immediate oversight and care of the heating apparatus. He had served in that capacity five years. It was his custom to leave the building about 5:30 P. M., returning again about 9 P. M., to bank the fire for the night. Before going to his supper on the evening in question, he attended to the fire in the usual way, and threw in some coal. At the same time he looked at the gauge, and found the water standing at the proper height of an inch above the water line or mark. It should be said, also, that the boiler was of about 400 gallons' capacity, and the admittedly safe and proper height to which it should be filled for ordinary use was at or near the water line above mentioned. At about 6:35 P. M., the elevator boy, a 15-year-old lad, with a companion noticed the appearance or smell of smoke. The foot of the elevator was near the boiler room, and upon investigation, the boys discovered fire on the lower edge of the canvas sheet which held the asbestos cover of the boiler in place. They also heard a hissing noise, "like water going onto a fire." One of them ran upstairs, where one or more persons connected with the bank still remained, and gave the alarm. The custodian was immediately called by telephone, and he promptly appeared. The fire department was also called, and several other persons assembled, and saw in a general way the condition in the boiler room. Among those thus present was a witness Hoffman, a plumber, who installed the boiler originally, and thereafter was frequently employed in its care and upkeep. He arrived at the fire about 7 P. M. The custodian had returned, and with others, drew the fire from under the boilers to the cement floor of the room. Later, about 8:15 or 8:30, someone asked about the "blow-off valve," and Hoffman and another person made examination, and say that they found it about "three quarters open." On the following day, the boiler, which was made in sections, was taken down. Of the 26 sections or 13 double sections of which it was composed, the pair in front and the pair at the back were in apparently sound condition, and all the remainder were cracked, the center sections showing the most marked effect of heating or burning. When assistance arrived, and the fire box was opened, it disclosed a very high degree of heat, and some of the parts, especially those of the upper or water grate, being the grate nearest the body of the boiler, were burning or melting. The loss of the boiler was practically total, and its value was shown to be from $ 2,700 to $ 2,800.
For the defendant, an expert witness testifies that, three days after the loss, he made careful examination of the boiler, and did not see any evidence or signs of fractures or cracks at that time, but did find evidence of the melting and burning in the water grates, and of parts of the sections "around where the water grates were." After describing the conditions as he found them, he says:
The foregoing statement does not include all the testimony, but it is sufficient to show the conflicting theories of the parties to the suit. In so far as the case turns upon the simple question whether the boiler was, in fact, "cracked or fractured," it can hardly be contended that there was no evidence to take that inquiry to the jury. The vital issue, however, is presented by the defendant's contention that, whatever may be the truth as to the alleged cracks and fractures in the boiler, the injury so sustained by the plaintiff was "due to fire," and is, therefore, not covered by the policy.
It may be well here to recall just what indemnity the defendant does promise to its policyholder. The contract recognizes a distinction between loss or damage to the boiler by "explosion," "rupture," or "collapse," and loss or damage caused by "mere cracking or fracturing" or the boiler; and for indemnity of this latter character, a special or additional premium is exacted. Plaintiff's policy is made to provide indemnity against both of these classes of hazards; and for its insurance against cracks and fractures of the boiler, it paid defendant a premium of $ 64, and for insurance against explosion, rupture, or collapse, it paid the further sum of $ 56. To make clear and certain the nature of the risk, the policy carefully defines what is meant by "explos...
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