German Fire Ins. Co. v. Roost

• Decision Date: 26 January 1897
• Parties: GERMAN FIRE INS. CO. v. ROOST.
• Court: Ohio Supreme Court

45 N.E. 1097

55 Ohio St. 581

GERMAN FIRE INS. CO. v. ROOST.

Supreme Court of Ohio.

January 26, 1897

Error to circuit court, Richland county.

Action by Henry Roost against the German Fire Insurance Company. Judgment for plaintiff, and defendant brings error. Reversed.

The action was upon a policy of fire insurance, with lightning clause attached, issued upon a house and furniture therein the allegation of the petition as to loss being that ‘on the 3d day of June, 1890, said house and furniture were wholly destroyed by lightning.’ The answer admitted the issuing of the policy as alleged, and denied the other allegations. At the trial a jury was waived, and the cause submitted to the court. Being requested to find its conclusions of fact and law separately, the court found as follows: ‘That said policy of insurance was issued by said defendant company as alleged. That the following clause was contained in the general contract of insurance ‘Sec. 2. This insurance does not apply to or cover * * * any loss caused by explosion, unless fire ensues, and then the loss or damage by fire only.’ That upon a printed and written slip, pasted upon the body of the policy, is the following clause, which is a part of said contract of insurance: ‘It is hereby specially agreed that this policy insures against any loss or damage caused by lightning to the interest of the assured in the property described, not exceeding the sum insured, and subject in all other respects to the terms and conditions of the policy hereby referred to,’-i. e. the policy in question. That the insurance was $400 on house and $100 on furniture therein. That the house and furniture were totally destroyed by the force of the explosion. That the house stood on the west side of a street 40 feet wide, and 21 feet from the street. That on the east side of said street, and opposite said house, was located a powder house. Neither plaintiff nor defendant had any interest in or control over said powder house. That shortly before January 3, 1890, there was stored in said powder house two tons of powder, and on said January 3d said powder house was struck by lightning, causing said explosion which destroyed said property as aforesaid. As its conclusion of law the court find that said damage was not caused by the explosion, as contemplated by the exception contained in said policy, but that said loss was caused by an explosion occasioned by lightning, and was included in the risk.' Judgment for plaintiff followed, which was affirmed by the circuit court. To reverse these judgments the present proceeding is brought.

A policy on a house and contents contained, in the printed portion, a provision that "this insurance does not apply to or cover any loss by explosion, unless fire ensues, and then the loss or damage by fire only," and had attached thereto a special clause providing "that this policy insures against any loss or damage caused by lightning to the interest of the assured in the property described, not exceeding the sum insured, and subject in all other respects to the terms and conditions of the policy." Held, that loss caused by an explosion of a powder house situated near by was not covered by the policy, though the explosion was caused by lightning.

Syllabus by the Court

1. The meaning of a contract is to be gathered from a consideration of all its parts, and no provision is to be wholly disregarded as inconsistent with other provisions unless no other reasonable construction is possible.

2. A special provision will be held to override a general provision only where the two cannot stand together. If reasonable effect can be given to both, each is to be retained.

3. A fire insurance policy on a house and contents contained, in the printed portion, a provision that ‘this insurance does not apply to or cover any loss by explosion, unless fire ensues, and then the loss or damage by fire only,’ and had attached thereto a special clause providing ‘that this policy insures against any loss of damage caused by lightning to the interest of the assured in the property described, not exceeding the sum insured, and subject in all other respects to the terms and conditions of the policy.’ There was stored in a certain powder house situate across the street from the building insured, and 71 feet distant therefrom, over which house neither party had any control, two tons of powder. The powder house was struck by lightning, causing an explosion of the powder, by force of which explosion the insured house and contents were totally destroyed. Held that, within the meaning of the clauses recited, the loss was occasioned by explosion, which was not included in the risk, and that the company is not liable.

John H. Doyle and Jenner & Weldon, for plaintiff in error.

Donnell & Marriott, for defendant in error.

SPEAR, J. (after stating the facts).

The plaintiff in error urges two propositions, either one of which being found in its favor would result in a reversal of the judgments: (1) That the proximate cause of the fire was the explosion, the lightning being only the remote cause, and the loss is, therefore, not within the terms of the lightning clause of the policy. (2) That whether the lightning clause taken alone, would, under the facts, create a liability or not, yet, when that provision is considered in connection with the entire policy, it is plain that the loss which occurred was not, within the contemplation of the parties at the time of the...