Hocking v. British America Assur. Co. of Toronto, Canada

• Decision Date: 04 February 1911
• Court: Washington Supreme Court
• Parties: HOCKING v. BRITISH AMERICA ASSUR. CO. OF TORONTO, CANADA.

113 P. 259

62 Wash. 73

HOCKING v. BRITISH AMERICA ASSUR. CO. OF TORONTO, CANADA.

Supreme Court of Washington

February 4, 1911

Department 1. Appeal from Superior Court, King County; Boyd J. Tallman Judge.

Action by E. Hocking, as administrator of H. E. Dean, deceased against the British America Assurance Company of Toronto Canada. From a judgment of nonsuit, plaintiff appeals. Affirmed.

Walter A. Keene, for appellant.

Granger & Clarke, for respondent.

GOSE J.

This is an action upon a policy of insurance for $1,000 issued by the defendant to the plaintiff's intestate, insuring him for the term of three years from the 21st day of November, 1906 against all direct loss or damage by fire to a certain building occupied by the insured as a residence, and situated at Hot Springs Station, in King county. On the 25th day of June, 1908, and within the life of the policy, the building was totally destroyed by fire. The policy of insurance contains this clause: 'The company shall not be liable for loss caused directly or indirectly by invasion, insurrection, riot, civil war, or commotion, or military or usurped power, or by order of any civil authority or by theft.' The defendant claims that the clause quoted exempts it from liability. It bases its exemption upon the following facts: The insured died of smallpox the day preceding the fire, and was removed from the house for burial about one hour before the fire occurred. The fire resulted from a fumigation of the house ordered by the board of health. At the close of the plaintiff's testimony, a judgment of nonsuit was entered. The plaintiff has appealed.

The appellant first contends that the word 'indirectly' has reference only to the causes preceding the phrase 'or by order of any civil authority'; that this is made plain by the use of the word 'by' in the phrase last quoted, and that the exemption in that clause is available only in case of loss occurring 'directly' by order of some civil authority. It is also said that the clause 'or by theft' gives support to this view. We think that such a construction would do violence to the language which the parties have seen fit to use, and that it would be also a strained and unnatural interpretation of their meaning. As was said in Insurance Co. v. Boon, 95 U.S. 117, 24 L.Ed. 395: 'Policies of insurance, like other contracts, must receive a reasonable interpretation consonant with the apparent object and plain intent of the parties. This is entirely consistent with the rule that ambiguities should be construed most strongly against the underwriters, and most favorably to the assured.'

It is also contended that the proximate cause of the fire was the negligence of the health officer, and that the fire was not even the indirect result of the order of the board. It is argued that the exemption was only intended to apply to a case where the property is destroyed by some direct act of the civil authority to prevent the spread of fire or disease or such like. We think the contention is not sound. Putting aside refined distinctions, it is obvious that the preponderating or producing cause of the fire was the order of the board of health directing its inferior officers to fumigate the house. The civil authority put its own agency into operation, and the fire was the indirect result.

There was no intervening cause. The proximate cause is the efficient cause, the one which puts the other causes into motion. Conner v. Manchester Assur. Co., 130 F. 743 65 C. C. A. 127, 70 L. R. A. 106, is in...