Leonard v. Orient Ins. Co.

• Decision Date: 26 June 1901
• Docket Number: 781.
• Citation: 109 F. 286
• Parties: LEONARD v. ORIENT INS. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

109 F. 286

LEONARD v. ORIENT INS. CO.

No. 781.

United States Court of Appeals, Seventh Circuit.

June 26, 1901

This is an action of assumpsit upon a policy of fire insurance issued by the Orient Insurance Company to Simeon E. Leonard, the plaintiff in error, upon a stock of seeds kept for sale in a six-story brick building, forty feet wide, fronting on Lake street, between Des Plaines and Union streets, and extending back about 170 feet to Pearl street on the east, in Chicago. The total insurance was $76,500; the total loss, $127,833.88. Suits are pending upon the other policies. The goods were destroyed mainly by fire, but partly by the falling of the northwest corner of the building in which they were kept. Next to that building on the west was a blacksmith shop, a frame building twenty feet wide, and next to that on the west was the New England Mill, consisting of a three-story frame in front, next to Lake street and a brick structure some stories higher in the rear. The evidence showed, or tended to show, that at 4:45 o'clock p.m. of November 1, 1899, an explosion occurred in the mill, caused probably by ignition of mill dust, or dust powder, and resulting in the instant demolition of the mill and blacksmith shop, and the tumbling down, a few moments later, of the northwest corner of the seed store. The fire, which followed the explosion, spread at once to the ruins of the mill and shop, and within two or three minutes-- probably within a few seconds-- fire appeared in the exposed part of the store, to which in all probability it communicated from the outside, though it might have originated from a stove or from burning gas jets in the office room on the ground floor. No witness testified to seeing unrestrained fire in the seed store before the falling of the corner of the building, and all the testimony touching the point tended to show that from the fall to the appearance of flame in that building there was a lapse of a few seconds, or minutes, as the witnesses more frequently but probably mistakenly expressed it. Following the explosion the air was full of dust and flame, which the strong wind blowing from the northwest, once the wall was down, doubtless carried into contact with the inflammable material in the store. The policy sued on insured 'against all direct loss or damage by fire, except as (t)hereinafter provided. ' The exceptions pertinent here are as follows: 'This company shall not be liable for the 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, or by neglect of the insured to use all reasonable means to save and preserve the property at and after a fire, or when the property is endangered by fire in neighboring premises, or (unless fire ensues, and in that event for the damage by fire only) by explosion of any kind or lightning; but liability for direct damage by lightning may be assumed by specific agreement hereon. If a building or any part thereof fall, except as the result of fire, all insurance by this policy on such building or its contents shall immediately cease. ' At the conclusion of the evidence offered by the plaintiff the court sustained the motion of the defendant for a peremptory instruction directing a verdict in its favor, and error is assigned upon that action. In explanation of the ruling the court said 'The case is one of very great importance. It is a question of interpretation that is not entirely covered by any authority I have found, and I have looked them over with some diligence, as called to my attention by your briefs. * * * I am well convinced that, unless you reject absolutely the condition contained in the 36th and 37th lines, there is no escape from the condition of the policy which declared it at an end,-- the insurance at an end when the walls fall, except by fire. That the walls fell by the force of the explosion in the mill is the uncontradicted testimony. That being so, I can see no escape from the condition of the policy that there was no insurance upon the building at the instant the fire occurred which destroyed the property. I think there is no escape from the view that a verdict should be directed accordingly.'

Henry W. Magee and Myron H. Beach, for pl...