HI-G, INCORPORATED v. St. Paul Fire & Marine Insurance Co., 7016.
| Decision Date | 27 March 1968 |
| Docket Number | No. 7016.,7016. |
| Citation | 391 F.2d 924 |
| Parties | HI-G, INCORPORATED, Plaintiff, Appellant, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Defendant, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Robert F. Sylvia, Boston, Mass., with whom Fine & Ambrogne, Boston, Mass., was on brief, for appellant.
Lionel H. Perlo, Boston, Mass., with whom Jacob J. Locke, and Ficksman & Conley, Boston, Mass., were on brief, for appellee.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
This diversity action to recover on an insurance policy covering "direct physical loss * * * or damage * * * from any external cause" should, concededly, result in a finding for the insured unless barred by the policy's exclusion clause. The presently material portion of that clause is as follows:
"Loss or damage caused by or resulting from dampness of atmosphere, dryness of atmosphere, extremes or changes of temperature, shrinkage, evaporation, loss of weight, rust, contamination, change in flavor or color or texture or finish, unless such loss or damage is caused directly by fire, lightening, windstorm, hail, explosion, riot or civil commotion, aircraft, vehicles other than transporting conveyances, bursting of pipes or apparatus, vandalism, malicious mischief, theft, attempted theft or casualty occurring to a vessel or other vehicle used in transporting the property."
The goods in question, a number of small electro-mechanical relays, were being subjected to heat and a vacuum inside an oven in preparation for the introduction of a preservative gas when, because of a mishap, oil vapor entered the oven. As a result the internal and external surfaces of the relays became coated with an oil film which proved to be nonremovable, destroying their usefulness. The district court, sitting without jury, found that the goods had been "contaminated" by the oil within the meaning of the exclusion clause, and entered judgment for the defendant. Plaintiff appeals.*
Plaintiff asserts that a common meaning of the verb "contaminate" is to introduce a foreign substance effecting a deleterious change in the product. This is true enough. It concedes, however, as it must, that a product is commonly spoken of as contaminated when the foreign substance merely injures its usefulness without affecting the original physical characteristics. Milk rendered unfit by the introduction of bacteria is contaminated, but so is it by the commingling of an inactive substance...
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