Maryland Casualty Co. v. Cherryvale Gas, Light & Power Co.

• Decision Date: 06 January 1917
• Docket Number: 20590
• Citation: 99 Kan. 563,162 P. 313
• Parties: MARYLAND CASUALTY CO. v. CHERRYVALE GAS, LIGHT & POWER CO.
• Court: Kansas Supreme Court

162 P. 313

99 Kan. 563

MARYLAND CASUALTY CO. v. CHERRYVALE GAS, LIGHT & POWER CO.

No. 20590

Supreme Court of Kansas

January 6, 1917

Syllabus by the Court.

Where natural gas has been negligently permitted to escape, and it is ignited with a match by a person who is searching for the gas leak, and an explosion results, the consequent damages are attributable to the explosion of the gas and to the negligence which permitted the gas to escape.

Where an insurance company issues a policy of insurance covering loss or damage to property, it is not bound to quibble with the policy holder as to whether the loss falls precisely within the terms of the policy. It may pay the loss, and it will thereby become subrogated to all the rights of the injured party in an action against the wrongdoer.

Rule followed that on a demurrer to the plaintiff’s evidence in support of its cause of action, the evidence is to be given full credence and considered in its most favorable light towards the party which adduced it.

Where the servant of a gas company, in response to an application to the company for gas service, turns on the gas at the wrong stop box whereby the gas escapes and enters neighboring property and is ignited by one who is testing the gas pipes for a supposed leak, and an explosion results, the consequent damage makes a prima facie case against the gas company which cannot be met by a demurrer to plaintiff’s evidence.

The question of splitting of causes of action considered and held, that such a defense cannot be used to strengthen a demurrer to plaintiff’s evidence.

Appeal from District Court, Montgomery County.

Action by the Maryland Casualty Company, a corporation, against the Cherryvale Gas, Light & Power Company, a corporation. From a judgment for defendant, plaintiff appeals. Reversed and remanded, with directions.

Sullivan Lomax, of Cherryvale, for appellant.

L. P Brooks, of Cherryvale, for appellee.

OPINION

DAWSON, J.

This is a damage suit. The plaintiff issued a policy insuring the plate glass front of a building in Cherryvale against breakage. In response to an application for gas by a tenant occupying the second floor of the building, the defendant’s employe turned on the gas by opening the wrong stop box--a stop box which connected with some old, defective, and unused pipe leading into an adjacent building. The stop box had been acquired with other property by the defendant from an older gas company. The service pipes from the stop boxes to the abutting property belonged to the property owners. The gas released from the wrong stop box found its way into the building having the plate glass front. The presence of gas was detected in that vicinity, and the defendant’s servant ignited it with a match while hunting in the basement of an adjoining building for the leak. This explosion blew out and smashed the plate glass front. The plaintiff paid the owner $150 for the loss covered by the insurance policy, and now seeks by subrogation to recoup from the gas company. The defendant’s demurrer to plaintiff’s petition was overruled. This is assigned as error. A demurrer to plaintiff’s evidence was sustained. And this is assigned as error.

The defendant contends that the petition did not state a cause of action because the plate glass was destroyed by fire, and the insurance policy provided:

"4. This insurance does not include and the company shall not be liable for--

(a) Any loss or damage resulting directly or indirectly from fire, whether on the premises described in the schedule or elsewhere."

In L’Ecuyer v. Life & Accident Co., 97 Kan. 540, 155 P. 1088, it was held that a policy of insurance covering accident or death by the burning of a building while the assured was therein did not cover an accident caused by the explosion of a can of kerosene in a building while the assured was therein, although the explosion set fire to the building and did considerable damage. In that case the plaintiff did not wholly fail, but the amount of the recovery was governed by certain other accident features of the policy. In the opinion, it is said:

"Manifestly the decedent was out of the building before the fire had made any progress towards consuming any portion of the building, and it could not have been the burning of the building while he was therein which caused his death." 97 Kan. 542, 155 P. 1088, 1089.

In United Life, Fire & Marine Ins. Co. v. Foote et al., 22 Ohio St. 340, 10 Am. Rep. 735, it was held that where an explosive mixture of whisky vapor and atmosphere came in contact with a gas jet, from which it ignited and exploded, and a fire ensued therefrom, which destroyed the property, the loss was occasioned by the explosion. A similar case was Briggs et al. v. N. A. & M. Ins. Co., 53 N.Y. (8 Sickels) 446. Another instructive case which discusses this general subject is reported in Transatlantic Fire Ins. Co. of Hamburg v. Dorsey, 56 Md. 70, 40 Am. Rep. 403.

Under the familiar rule of insurance law which attributes loss or injury to its proximate cause only, the plate glass in this case was broken by the explosion of gas and not by fire. Mitchell v. Potomac Insurance Co., 183 U.S. 42, 22 S.Ct. 22, 46 L.Ed. 74; Maryland Casualty Co. v. Edgar, 203 F. 656, 122 C. C. A. 52; Heuer v. North Western Nat. Ins. Co. of Milwaukee, 144 Ill. 393, 33 N.E. 411, 19 L. R. A. 594; Vorse v. Jersey Plate Glass Ins. Co., 119 Iowa, 555, 93 N.W. 569, 60 L. R. A. 838, 97 Am. St. Rep. 330; Boatman’s Fire & Marine Ins. Co. v. Parker, 23 Ohio St. 85, 13 Am. Rep. 228; Wadsworth v. Canadian Ry. Acc. Ins. Co., 49 Can. S.Ct. 115, Ann. Cas. 1914C, 306, and note. See, also, Gas Co. v. Carter, 65 Kan. 565, 568, 70 P. 635.

Moreover the insurance company was not required to quibble with the assured as to whether its policy fairly covered the breaking of the glass by the gas explosion or whether the remoter cause, the lighting of the match, was a fire, and that the fire was the cause of the breaking of the glass. The insurance company had the right to pay, and it is subrogated to all the rights of its policy holder against the wrongdoer who released the gas which did the mischief. Railroad Co. v. Insurance Co., 59 Kan. 432, 53 P. 459; St. Louis, etc., Railway v. Commercial Ins. Co., 139 U.S. 223, 235, 11 S.Ct. 554, 35 L.Ed. 154; Railway Co. v. Fire Association, 60 Ark. 325, 30...