Hartford Fire Ins. Co. v. Armstrong

• Decision Date: 11 April 1929
• Docket Number: 4 Div. 419.
• Citation: 219 Ala. 208,122 So. 23
• Parties: HARTFORD FIRE INS. CO. v. ARMSTRONG.
• Court: Alabama Supreme Court

122 So. 23

219 Ala. 208

HARTFORD FIRE INS. CO. v. ARMSTRONG.

4 Div. 419.

Supreme Court of Alabama

April 11, 1929

Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.

Action on a policy of fire insurance by B. W. Armstrong against the Hartford Fire Insurance Company. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Reversed and remanded.

Farmer Merrill & Farmer, of Dothan, for appellant.

J. N Mullins, of Dothan, for appellee.

GARDNER J.

Appellee recovered a judgment against appellant in the sum of $85 on a fire insurance policy contract for damages to his dwelling caused by smoke and soot from a fire originating in his oil heater. It appears from the proof that smoke and soot reached seven of the ten rooms of the dwelling and that plaintiff suffered damages thereby to his house and furniture is not questioned, though the evidence of the amount is in dispute.

The oil heater in the kitchen had two wicks, which some one had evidently turned up too high. A cord was over this heater, on which were some rags, and plaintiff's evidence is to the effect that when he reached home and discovered the smoke he found these rags burning. The contradictory evidence offered by defendant left this a jury question. Counsel for defendant insist the burning of these rags is the only fire disclosed by the proof that was beyond and outside the heater, and that plaintiff could only recover damages resulting therefrom, which would be nominal.

While the question does not appear to have been previously presented to this court, yet we fully recognize the distinction, as argued by counsel for defendant, between what is known as a "friendly" and a "hostile" fire, and that to sustain a recovery upon the policy it must appear that the damages suffered by plaintiff were the result of a hostile, as distinguished from a friendly, fire. The early English case of Austin v. Drew, 6 Taunt. 436, has been frequently cited by the American courts, and with the general principle therein recognized our courts have been in accord. Hansen v. Le Mars Mut. Ins. Ass'n, 196 Iowa, 1, 186 N.W. 468, 20 A. L. R. 964, and note; Way v. Abington Mut. Fire Ins. Co., 166 Mass. 67, 43 N.E. 1032, 32 L. R. A. 608, 55 Am. St. Rep. 379; Cannon v. Ph nix Ins. Co., 110 Ga. 563, 35 S.E. 775, 78 Am. St. Rep. 124; Fitzgerald v. German-American Ins. Co., 30 Misc. 72, 62 N.Y.S. 824; Collins v. Delaware Ins. Co., 9 Pa. Super. Ct. 576; New Orleans Ry. & Light Co. v. Ætna Fire Ins. Co., 145 La. 82, 81 So. 764; O'Connor v. Queens Ins. Co., 140 Wis. 388, 122 N.W. 1038, 1122, 25 L. R. A. (N. S.) 501, 133 Am. St. Rep. 1081, 17 Ann. Cas. 1118, and note.

This general rule, found stated in Wood on Insurance, § 103, and frequently quoted in the cases, is as follows: "Where fire is employed as an agent, either for the ordinary purposes 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 actual ignition outside of the agencies employed, not purposely caused by the assured, and these, as a consequence of such ignition, dehors the agencies."

In Collins v. Delaware Insurance Co., supra, the plaintiff's evidence tended to show that the smoke and soot causing the damage was from a coal oil stove, and was produced by the fire which was not confined to the burning of the wick, but which had extended to the tank and enveloped the stove. The court, in discussing the above-quoted rule by Mr. Wood, said: "The rule as stated in Wood on Fire Insurance, 'that there must be actual ignition outside of the agencies employed,' is not subject to criticism when properly understood. We cannot, however, assent to the proposition that, if there was no ignition, except in or on the stove, there was no fire within the meaning of the policy. The fuel was oil and was intended to be consumed in a particular place, namely, by the wick fed from a tank in which the oil was kept. It was no more intended to be burned in the tank than in the barrel or the can in which it was brought to the house and kept." The conclusion of the court is well expressed in the following summary: "If, therefore, the smoke that did the damage proceeded from a fire 'out of place,' it is no answer to say that this originated in a fire in the place fitted and intended for it."

A like distinction was made by the Massachusetts court in Way v. Abington Mut. Fire Ins. Co., supra, in the following language: "We are inclined to the opinion that a distinction should be made between a fire intentionally lighted and maintained for a useful purpose in connection with the occupation of a building, and a fire which starts from such a fire without human agency in a place where fires are never lighted nor maintained, although such ignition may naturally be expected to occur occasionally as an incident to the maintenance of necessary fires, and although the place where it occurs is constructed with a view to prevent damage from such ignition. A fire in a chimney should be considered rather a hostile fire than a friendly fire, and as such, if it causes damage, it is within the provisions of ordinary contracts of fire insurance."

We think a reading of the authorities hereinabove cited and those found in the note to Hansen v. Le Mars Ins. Co., supra, demonstrate that the language of the rule stated in Wood on Insurance is to be understood and interpreted as above outlined.

If therefore, under this rule the smoke and soot were produced from a fire "out of place," it is no answer to a suit on the policy that it originated in a fire in the place...