Hansen v. Lemars Mut. Ins. Ass'n

• Decision Date: 14 February 1922
• Docket Number: No. 34375.,34375.
• Parties: HANSEN v. LEMARS MUT. INS. ASS'N.
• Court: Iowa Supreme Court

193 Iowa 1

186 N.W. 468

HANSEN

v.LEMARS MUT. INS. ASS'N.

No. 34375.

Supreme Court of Iowa.

Feb. 14, 1922.

Appeal from District Court, Sioux County; Wm. Hutchinson, Judge.

Action upon a policy of fire insurance to recover thereunder damages caused by smoke and soot. At the close of plaintiff's evidence there was a directed verdict for the defendant. The plaintiff appeals. Affirmed.C. A. Plank, of Hawarden, for appellant.

J. T. Keenan, of Le Mars, and Van Oosterhout & Kolyn, of Orange City, for appellee.

EVANS, J.

The plaintiff was a holder of an insurance policy of the defendant company which covered his household goods. He averred in his petition that he suffered a loss from fire to such household goods to the amount of $428 in that damages had been caused to his household goods by smoke and soot which escaped from his oil stove and filled his house to such an extent as to cause the damage complained of. The story of the fire in brief is that plaintiff arose at 5 o'clock in the morning and lit the burners of his oil stove in the kitchen for the purpose of heating a boiler full of water which had been set there on the night before. The ultimate purpose was to heat the water for use in the family washing to be done that morning. Having lit the burners with a match, the plaintiff went back to bed and fell asleep. One hour later he was awakened by the smoke and soot which filled his house. He immediately repaired to the kitchen and found that the flames from his burners extended nearly to the top of the boiler and were emitting in great quantities the smoke and soot complained of. He removed the cause of the smoke and soot by turning out the wicks in the burners. He testified, “I went over there and turned them out.” The following statement by the trial court is a fair summary of the record:

“There was no fire except that under the boiler, as he tells it. The only thing that was necessary to extinguish the fire was to turn down the burner. The burner was turned down, and the fire under the stove went out; smoke disappeared. There is no evidence here that there was any leak, that there was any fire in the pan, or that that tank had ignited. The only evidence here is that the burner that was started was turned up too high, or became overloaded, which caused more fire and flame than was reasonably and necessarily intended when it was lighted. It is a matter of common knowledge with those who use the oil stoves that they will smoke if they are not particularly watched and cared for, and I cannot see any theory upon which the plaintiff can recover in this case. There was no leaking oil; no ignition of the tank; nothing necessary to put it out but to turn down the burner and it went out.”

Nothing is claimed for any damage done by flame or heat except as the same produced the smoke and soot. The defendant denied all liability for the loss on the ground that there was no fire within the contemplation of the policy. It is not essential to the plaintiff's right of recovery that he should show that he had suffered loss by the actual burning of any part of his property, but it is essential that it should appear that the smoke and soot from which he suffered resulted from a “hostile” fire rather than from a “friendly” one. Ordinarily a fire in a stove or furnace and subject to control in such place is a “friendly” fire, and damage for smoke and soot therefrom is not within the contemplation of an insurance policy. The rule in such cases is stated in Wood on Insurance, § 103, as follows:

“Where fire is employed as an agent, either for the ordinary purpose of heating the building, for the purposes of manufacture, or as an instrument of art, the insurer is not liable for the consequences thereof, so long as the fire itself is confined within the limit of the agencies employed, as from the effects of smoke or heat evolved thereby or escaping therefrom from any cause, whether intentional or accidental. In order to bring such consequences within the risk, there must be...