Hartford Fire Ins. Co. v. Empire Coal Min. Co.

• Decision Date: 16 January 1929
• Docket Number: No. 7958.,7958.
• Parties: HARTFORD FIRE INS. CO. v. EMPIRE COAL MIN. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

30 F.2d 794 (1929)

HARTFORD FIRE INS. CO. v. EMPIRE COAL MIN. CO.^*

No. 7958.

Circuit Court of Appeals, Eighth Circuit.

January 16, 1929.

Clarence G. Myers, of Chicago, Ill. (Myers & Snerly, of Chicago, Ill., and Richard F. Ryan, of Denver, Colo., on the brief), for plaintiff in error.

George L. Nye, of Denver, Colo. (John Pershing, of Denver, Colo., on the brief), for defendant in error.

Before BOOTH and COTTERAL, Circuit Judges, and REEVES, District Judge.

BOOTH, Circuit Judge.

This is a writ of error to a judgment entered after verdict in favor of defendant in error, plaintiff below. The suit was commenced in the state district court for the city and county of Denver, Colo., and was thereafter duly removed to the United States District Court for the District of Colorado on the grounds of diversity of citizenship and requisite amount involved.

The action was upon a policy of insurance issued by plaintiff in error covering certain risks in connection with plaintiff's mining property in Las Animas county, Colo. The parties will be designated as in the court below.

The assignments of error, forty-four in number, may be grouped (after elimination of those purporting to cover matters not subject to review, and those which are too general to call for examination), around the following topics: (1) Construction of the policy; (2) underground explosion as the cause of loss; (3) sufficiency of papers purporting to be proofs of loss; (4) sufficiency of the evidence as to amount of loss.

The policy of insurance, so far as here material, is set out in the margin.¹

Construction of the Policy.

The particular clause of the policy under which recovery is claimed reads as follows: "* * * And this Company also assumes the $15,000.00 additional liability for any loss or damage to the underground workings and equipment and ventilating fans and for the expense of pumping to the surface the water accumulated by reason of the inability of the assured to maintain pumping service due to an underground explosion."

The construction of this clause contended for by defendant is thus stated by its counsel: "The policy or contract of insurance only covered and insured the plaintiff against loss and damage, if any, suffered by the plaintiff to the underground workings, equipment and ventilating fans caused by the inability of the plaintiff to maintain pumping service due to an underground explosion, and for the cost of pumping to the surface any water that accumulated on account of the inability of the plaintiff to maintain said pumping service due to an underground explosion."

In other words, it is contended that the liability under the clause quoted related to three items of loss and damage, viz., to underground workings, equipment, ventilating fans; and to one item of costs, viz., cost of pumping to the surface accumulated water; and it is further contended that all four items must have been caused by the inability of the plaintiff to maintain pumping service; and, finally, that this inability to maintain pumping service must have been due to an underground explosion.

On the other hand, the contention of plaintiff is that the liability under the clause quoted from the policy related to the same three items of loss and damage and the one item of cost of pumping; but that the first three items were subject to the single condition, "due to an underground explosion," whereas the last item, "cost of pumping," was subject to the double condition, "inability to maintain pumping service due to an underground explosion."

In determining the proper construction to be given to the clause in question, resort may be had to the other provisions of the policy. The face of the policy consists of two parts: First, a printed form; second, a typewritten rider which, after giving a description of the property, goes on to say: "It is a condition of this insurance that this policy does not cover in the foregoing paragraph, or except as hereinafter provided, property in mines or shafts below the surface of the ground, nor shall this Company be liable for loss or damage to buildings and equipment, except as hereinafter provided, as a result of any explosion occurring in the underground workings." There follows a provision prohibiting the storage of explosives; and then come the two special $15,000 risk clauses.

It is thus seen that the printed form of the policy did not cover (1) Property in mines or shafts below the surface of the ground; (2) loss or damage resulting from an underground explosion. The two special risk clauses in the rider covered these two matters respectively. Each of these two special risk clauses covered items of property loss, and each covered the item of cost of pumping to the surface accumulated water. The coverage of this expense item of pumping was dependent in both clauses upon the same condition, viz., inability to maintain the pumping service at the mine. The attaching of this condition to the expense item of pumping was quite natural. But in our opinion it would be unnatural to attach this condition to the items of loss and damage to property. Items of loss and damage to property by underground explosion might well occur whether the pumping service of the mine was maintained or not; and, if they could occur without regard to whether pumping service was maintained, it would seem unnatural and unlikely that they should be included in the coverage in the one instance and not in the other. In other words, we think that the insurance which covered property loss and damage under the clause in question was against underground explosion, not against inability to maintain pumping service. The expense incident to the inability to maintain pumping service because of underground explosion was a separate item of coverage.

The foregoing construction in our opinion is in accord with the language used in the clause in question, and in accord with the intention of the parties as disclosed by other provisions in the policy. It furthermore does not require any interpolation of words as does the construction contended for by defendant.

It is argued by counsel for defendant that, since loss by fire resulting from explosion above ground was excluded by the terms of the policy, it is unreasonable to hold that there was an intention to cover loss by fire resulting from an underground explosion. We fail to see the force of this argument. On the contrary, the fact that the policy by express language excluded loss by fire resulting from an explosion above ground, and the further fact that the policy did not by similar language exclude loss by fire resulting from an explosion underground, would seem to indicate an intention to cover loss by fire resulting from an explosion underground. Furthermore, the two fires which might be thus caused would differ very materially as to their being accessible by ordinary fire fighting apparatus; and for this reason, among others, they might well be treated differently as regards insurance. We think the construction placed upon the policy by the trial court was correct.

Underground Explosion as the Cause of Loss.

The term "explosion" has a varied meaning. Webster's Dictionary defines it as "a violent bursting or expansion, with noise, following the sudden production of great pressure, as in the case of explosives, or a sudden release of pressure, as in the disruption of a steam boiler."

Century Dictionary defines it as "a sudden expansion of a substance, as gunpowder or an elastic fluid, with force and usually a loud report; a sudden and loud discharge."

The New English Dictionary (Oxford) gives this definition, "of a gas, gunpowder, etc.: the action of `going off' with a loud noise under the influence of suddenly developed internal energy."

New International Encyc. vol. VII, p. 373 (D. M. & Co. '05), states: "The development of an explosion may often be explained as resulting from the transformation of a shock into heat. This may be accomplished by the propagation of the shock from particle to particle in an explosive, or by a shock from one explosive body to another not in direct contact."

In United Life Fire & Marine Ins. Co. v. Foote, 22 Ohio St. 340, 348, 10 Am. Rep. 735, it was said: "An explosion may be described generally, as a sudden and rapid combustion, causing violent expansion of the air, and accompanied by a report. But the rapidity of the combustion, the violence of the expansion, and the vehemence of the report, vary in intensity as often as the occurrences multiply. Hence, an explosion is an idea of degrees, and the true meaning of the word, in each particular case, must be settled, not by any fixed standard, or accurate measurement, but by the common experience and notions of men in matters of that sort."

In Trans. F. Ins. Co. v. Dorsey, 56 Md. 70, 81, 40 Am. Rep. 403, it was said: "An explosion, produced by ignition, according to common understanding, may be accurately enough described, for practical purposes, as a sudden and rapid combustion, causing a violent expansion of the air, and producing a report more or less loud, according to the resistance offered. That it greatly varies in its degrees of violence, and the effects produced, are facts fully within the experience of every one. We must suppose that the term was employed in the policy in its ordinary and popular meaning."

In Mitchell v. Potomac Ins. Co., 16 App. D. C. 241, 270, it was said, quoting from the Dorsey Case, supra: "* * * An explosion * * * according to common understanding, may be accurately enough described for practical purposes as a sudden and rapid combustion causing a violent expansion of the air and producing a report more or less loud."

In Vorse v. Jersey Plate Glass Ins. Co., 119 Iowa, 555, 557, 93 N. W. 569, 570 (60 L. R. A. 838, 97 Am. St. Rep. 330) it was 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,...