Liverpool & London & Globe Ins. Co. v. Currie

• Decision Date: 13 October 1921
• Docket Number: (No. 1238.)
• Parties: LIVERPOOL & LONDON & GLOBE INS. CO., Limited, v. CURRIE.
• Court: Texas Court of Appeals

234 S.W. 232

LIVERPOOL & LONDON & GLOBE INS. CO., Limited, v. CURRIE.

(No. 1238.)

Court of Civil Appeals of Texas. El Paso.

October 13, 1921.

Rehearing Denied November 10, 1921.

Error from District Court, Midland County; W. P. Leslie, Judge.

Action by Robert Currie against the Liverpool & London & Globe Insurance Company, Limited. From judgment for plaintiff, defendant brings error. Reversed and rendered.

Locke & Locke, of Dallas, for plaintiff in error.

B. Frank Haag and Chas. L. Klapproth, both of Midland, for defendant in error.

HIGGINS, J.

Plaintiff in error issued an insurance policy to the defendant in error, Currie, insuring a building "against all direct loss or damages by fire, except as hereinafter provided," in the sum of $3,200. In a subsequent clause of the contract it was stipulated that—

"This company shall not be liable for loss caused directly or indirectly by invasion * * *; or (unless fire ensues, and, in that event, for the damage by fire only) by explosion of any kind."

The Westmoreland building and Currie's building were situate in the same block and upon the same side of the street in Midland, Tex. There was a building between the Westmoreland and Currie buildings. About midnight on May 28, 1918, and during the life of the policy a terrible explosion occurred in the Westmoreland building. The explosive substance was vaporized gasoline. The only person present at the time of the explosion was Tom Carr, an employee of a pool hall conducted in the Westmoreland building. His dead body was found immediately after the explosion upon the ground a short distance from the back door of the pool hall. The explosion completely demolished the Westmoreland building. The parties who arrived immediately after the explosion found the ruins enveloped in flames. The concussion from the explosion greatly damaged the Currie building. Thereafter Currie brought this suit upon the policy and recovered.

The controlling question relates to the liability of the plaintiff in error for the damage wrought by the explosion. It is very generally held that insurance against loss by fire includes all loss from explosions which are the direct result of an antecedent fire upon the insured premises. In such case the explosion is regarded as a mere incident of the fire and the damage sustained as the direct and proximate result of the fire. This principle has been recognized in a case before this court wherein the owner of the Westmoreland building sought and obtained a recovery upon a policy issued to him covering the building wherein this same explosion and fire was in question. Ins. Co. v. Westmoreland, 215 S. W. 471.

But after diligent search we have been unable to find any case holding that damage from an explosion was within the risk assumed under a fire policy containing an explosion clause as an excepted risk where the explosion occurs in, and is caused by, an antecedent fire in a building other than the insured premises. The authorities all say there is no liability, and this court has so held in the companion case of Insurance Co. v. Mims, 226 S. W. 738. See Hustace v. Ins. Co., 175 N. Y. 292, 67 N. E. 592, 62 L. R. A. 651; Ins. Co. v. Roost, 55 Ohio St. 581, 45 N. E. 1097, 36 L. R. A. 236, 60 Am. St. Rep. 711; Hall v. Ins. Co., ...