Githens v. Great Am. Ins. Co. of N.Y.

• Decision Date: 09 February 1926
• Docket Number: No. 36724.,36724.
• Citation: 207 N.W. 243,201 Iowa 266
• Parties: GITHENS v. GREAT AMERICAN INS. CO. OF NEW YORK.
• Court: Iowa Supreme Court

201 Iowa 266

207 N.W. 243

GITHENS

v.GREAT AMERICAN INS. CO. OF NEW YORK.

No. 36724.

Supreme Court of Iowa.

Feb. 9, 1926.

Appeal from District Court, Wayne County; Homer A. Fuller, Judge.

Suit on a fire insurance policy. The jury returned a verdict in behalf of the plaintiff, and the defendant appeals. Affirmed.McGinnis & McGinnis, of Leon, for appellant.

Steele & Miles and Bracewell, Murrow & Poston, all of Corydon, for appellee.

FAVILLE, J.

Appellee was the owner of a one-story brick building located on the west side of Park avenue in the town of Allerton. He carried policies of insurance in appellant company, one upon the stock of goods in said building and the other upon the building itself. The stock of goods consisted largely of jewelry. The building in question was one of a series of brick structures and was the third of said buildings counting from the north. The north building of said row was occupied as a marble shop, and south of it was a restaurant. Appellee's building was next. There was a brick partition wall between the restaurant and appellee's building. South of appellee's building was a building used as a cleaning establishment, and in which a small stock of gentlemen's furnishing goods was carried. Appellee's building and the building south of it were under a single roof. There was a space between the ceiling of these two buildings and the roof which covered them. A fire broke out in the restaurant building immediately north of appellee's building. There was an explosion of some character in the restaurant building, followed immediately by a rapidly progressive fire which destroyed the contents of the restaurant building. While this fire was in progress, it was noticed that the electric lights in appellee's building began to flicker and be unsteady, and very shortly thereafter an explosion took place evidently between the ceiling and the roof of appellee's building. This explosion lifted the roof a considerable distance in the air, and it fell back upon appellee's building and caused damage to the insured property therein. This action is to recover under the policy of fire insurance for the damage so caused. The building of appellee and the contents therein were not burned. There was apparently no fire in said building after the explosion which destroyed the roof. It is the contention of appellee that the explosion which took place under the roof of appellee's building was caused by a preceding fire which found its way into appellee's building from the adjacent burning building.

The insurance policies in this case are the standard form used in this state. The policy provides that the company insures appellee “against all direct loss or damage by fire, except as hereinafter provided.” The exception involved in this case is as follows:

“This company shall not be liable for loss caused directly or indirectly by invasion, insurrection, riot, civil war, or (unless fire ensues, and in that event, for damage by fire only) by explosion of any kind.”

[1][2][3] I. Appellant contends that its motion for a directed verdict should have been sustained.The contention at this point involves a construction of the policy of insurance and also a consideration of the evidence in the case. The general provision of the policy is an insurance “against all direct loss or damage by fire, except as hereinafter provided.” The exception clause under consideration may perhaps be easier examined if its terms are transposed. The exception therein provided for is that the company shall not be liable for loss caused directly or indirectly by explosion of any kind, unless fire ensues, and in that event, for damage by fire only. It is appellant's contention that the proper construction of this provision of the policy is that thereunder appellant is not to be held liable for any injury caused by an explosion of any kind if nothing but an explosion occurs. To put the proposition in another way, it is the contention of appellant that if for some reason an explosion takes place which injures the insured property, but no fire ensues from the explosion, in such an event appellant would not be liable under its policy.

It must be conceded that the evidence is wholly insufficient to show that the explosion in appellee's building was followed by any fire that damaged any of appellee's property. If there were nothing more in the case than evidence that from some unexplainable cause an explosion took place in appellee's building which resulted in the injury complained of, without proof that any damage was caused by fire, there would be no recovery under the terms and provisions of the policy. The exception would appear to cover such a situation exactly. See Furbush v. Ins. Co., 140 Iowa, 240, 246, 118 N. W. 371.

It is obvious that an explosion may occur with resulting injury without any fire either preceding or following the explosion. In Vorse v. Jersey Plate Glass Ins. Co., 119 Iowa, 555, 93 N. W. 569, 60 L. R. A. 838, 97 Am. St. Rep. 330, we said:

“The term ‘explosion’ has no fixed and definite meaning either in ordinary speech or in law. It may be described, in a general way, as sudden and rapid combustion, causing violent expansion of the air, and accompanied by a report. It may and does vary in degrees of intensity and in the vehemence of the report, and it is not always due to the presence of fire. Indeed, it may result from decomposition or chemical action.”

It is clear that the damage to appellee's property was not caused by any fire that followed the explosion. Appellee plants his right to recover under the policy, in view of the facts in the case, upon the proposition that there was sufficient evidence offered in his behalf to take to the jury the question that there was a preceding hostile fire in appellee's building; that this preceding hostile fire was the cause of the resultant explosion, and therefore the injury to appellee's property was caused “by fire.” There is evidence tending to show that the fire from the adjacent property may have escaped through or over the partition wall between the burning building and appellee's building and may have come in contact with some substance between the ceiling and roof of appellee's building, causing the explosion that followed, which explosion caused the injury for which recovery is sought. If there was a preceding hostile fire in any portion of appellee's building, which fire of itself did not cause any substantial injury to the building or contents by burning any portion thereof, but which fire was the cause of an explosion that injured appellee's building and property, can it be said that appellee's loss resulted from the preceding hostile fire for which recovery can be had under the policy?

Appellant places reliance upon our holding in Vorse v. Jersey Plate Glass Ins. Co., supra. In that case the action was to recover for the breakage of plate glass, under what is commonly called “a plate glass policy” and not a “fire policy.” The exception clause in the policy was that the company was not liable for loss or damage that happened by or in consequence of any fire. Recovery was sought for breakage of plate glass, which was caused by an explosion of gas generated from gasoline in the building, which gas was ignited by a match or light in the room. The contention was that the damage was caused by fire from the match or light, and the insurance company claimed that it was not liable because under the exception clause it was not liable for breakage caused “by fire.” We held that a lighted match or other light properly in the building was not contemplated by the parties as “a fire” which was excepted by the terms of the policy. Such light or “fire” was what is termed by the authorities “a friendly fire” as distinguished from “a hostile fire.” And we held that the damage to the glass was not within the exception of the policy; that it was not caused “by fire” within the meaning of said policy, and that the lighted match or other “friendly fire” which caused the gasoline to explode was not “a fire” within the meaning of the exception in the policy.

The case is not in point under the facts of the instant case. The distinction between a lighted match or a lighted cigar, burning gas jet, a reasonable fire in a stove for heating purposes, and other innocent or “friendly fires,” and a “hostile fire,” is clearly recognized. First Nat. Bank v. Royal Ind. Co., 193 Iowa, 221, 228, 186 N. W. 934;Hansen v. Le Mars Mut. Ins. Ass'n, 193 Iowa, 1, 186 N. W. 468, 20 A. L. R. 964;Mitchell v. Potomac Ins. Co., 183 U. S. 42, 22 S. Ct. 22, 46 L. Ed. 74;United Life, etc., Ins. Co. v. Foote, 22 Ohio St. 340, 10 Am. Rep. 735;Briggs v. Ins. Co., 53 N. Y. 449;Transatlantic Fire Ins. Co. v. Dorsey, 56 Md. 70, 40 Am. Rep. 403;Heuer v. Northwestern Natl. Ins. Co., 144 Ill. 393, 33 N. E. 411, 19 L. R. A. 594.

Assuming that there was a preceding hostilefire which caused the explosion, if such hostile fire did no substantial injury to appellee's property by actually burning the same, but did cause the explosion, with no subseqent burning, can it be said that the injury to appellee's property, resulting from the explosion, was caused by the hostile fire?

In German American Ins. Co. v. Hyman, 42 Colo. 156, 94 P. 27, 16 L. R. A. (N. S.) 77, the Supreme Court of Colorado considered a policy identical in its provisions with the policy in the instant case. The court said:

“If the fire preceded the explosion and the explosion was an incident thereto, the fire was the direct or proximate cause of the injury by the explosion, and plaintiff was entitled to recover for his entire loss. But if the explosion preceded the fire and was not caused by it, p...