Metropolitan Casualty Ins. Co. of New York v. Bergheim

• Decision Date: 13 February 1912
• Parties: METROPOLITAN CASUALTY INS. CO. OF NEW YORK v. BERGHEIM.
• Court: Colorado Court of Appeals

122 P. 812

21 Colo.App. 527

METROPOLITAN CASUALTY INS. CO. OF NEW YORK v. BERGHEIM.

Court of Appeals of Colorado

February 13, 1912

Rehearing Denied April 8, 1912

Appeal from District Court, Boulder County; Harry P. Gamble, Judge.

Action by Jonas Bergheim against the Metropolitan Casualty Insurance Company of New York. Judgment for plaintiff. Defendant appeals. Affirmed.

William J. Miles, of Denver, for appellant.

Montgomery & Ingram (Elizabeth M. Brown, of counsel), all of Denver, for appellee.

WALLING J.

The action was brought to recover on certain policies of insurance issued by the appellant to the appellee and others. It will only be necessary to refer to the terms of the policy issued to the appellee, which was the basis of the first cause of action in the complaint, as typical of the policies set out in the remaining causes of action. The various losses complained of in the several causes of action occurred at the same time, as the result of the same cause. The judgment of the trial court was based upon a finding of the facts, which covered all of the causes of action.

By the policy set forth in the first cause of action, appellant, in consideration of the premium mentioned insured appellee against loss by breakage of glass in the premises described, and agreed to make good to the assured "all such loss or damage as shall happen by breakage of the glass" specified in the policy. It was expressed in the policy that it was issued to and accepted by the assured subject to certain conditions therein stated, among others the following: "That this company is not liable for any loss or damage resulting directly or indirectly from fire (whether on the premises above described or not), earthquake inundation, insurrection, riot or any military or usurped power, or by the blowing up of buildings when authorized by municipal, state or national governments, or caused by the acts or operation of workmen engaged in the construction or alteration of or repairs to the buildings or frames." It appears from the findings of the trial court--which are not disputed--that there was a fire in the freightyards belonging to certain railroad companies, which fire consumed a large number of freight cars, the freight depot, and the sheds connected therewith; that during the progress of the fire an explosion of dynamite occurred in one of the cars standing on a track adjoining a freight shed; that the explosion of the dynamite in the car was caused by the intense heat produced by the fire; that the breakage of the plate glass alleged in the plaintiff's complaint was caused by the explosion of the dynamite in the car; and that the glass which was broken was located in various parts of the city, at distances of from two to six or eight blocks from the place where the dynamite was exploded. Upon those facts the court gave judgment for the appellee.

It is claimed by the appellant that the loss resulted, directly or indirectly, from the fire in the railroad yards, and consequently that the insurance company was not liable, by reason of the exception in its policy; while, to the contrary, it is insisted for the appellee that the breaking of the glass, in the circumstances of the case, was within the obligation assumed by the appellant upon a proper construction of the terms of its policy. We are relieved from the necessity of any extensive review of the cases, industriously collected by counsel on either side, bearing upon the question of proximate cause when arising under contracts of this nature--more particularly policies of fire insurance--in view of the conclusions announced by our Supreme Court in the case of German Am. Ins. Co. v. Hyman, 42 Colo. 156, 94 P. 27, 16 L.R.A. (N.S.) 77. That was an action upon a fire insurance policy, which contained this condition: "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." Construing this condition, Mr. Justice Helm said, for the court, at page 172 of 42 Colo., at page 32 of 94 P. (16 L.R.A.[ N.S.] 77): "If the fire preceded the explosion and the explosion was an incident thereto, the fire was the direct or proximate cause of the injury by the explosion, and plaintiff was entitled to recover for his entire loss. But, if the explosion preceded the fire and was not caused by it, plaintiff can, under the express terms of the policy, only recover for that proportion of the damage resulting from the fire alone. This construction is well established. There seems to be no serious conflict of authority in relation thereto." It was further said at page 174 of 42 Colo., at page 33 of 94 P. (16 L.R.A. [ N.S.] 77): "If any testimony had been received tending to show that a fire preceded and caused the explosion, thus creating a conflict of evidence upon this subject, we would probably regard the decision of the trial court as controlling. But under the circumstances we must conclude that he adopted an erroneous view of the law or misconceived the effect of the evidence. Governed by this evidence--as, of course, we must be--we can come to no other conclusion but that the explosion produced the fire, and was not itself a mere incident to, or result of, a preceding fire." The further point was determined in the Hyman Case, appearing from the following language of the opinion: "The 'fire' referred to in the provision of the policies under consideration is an actual fire, according to the ordinary and common use of the term. The blaze produced by lighting a match or gas jet or lamp is not such a fire as is contemplated. And the accidental igniting of gas by such means, resulting in an explosion, does not, within the language of the contract, render the explosion an incident to a fire." After referring to the case of Mitchell v. Potomac Ins. Co., 183 U.S. 42, 22 S.Ct. 22, 46 L.Ed. 74, with particularity, the opinion proceeds: "Further sustaining the construction that, in order to be within the meaning of the contract, the ignition of the explosive substance must be caused by an actual combustion involuntarily or illegally started, termed by some of the authorities as 'negligent or unlawful' fire, and not by a harmless combustion, such as a lighted cigar, the burning of gas jets, the lighting of matches, reasonable fire in a stove for heating purposes, and other 'innocent' fires, see the following additional authorities." A number of them are cited.

Reference has been made to the last-mentioned point of the opinion in the Hyman Case, for the purpose of comparing that decision with the case of Vorse v. Plate Glass Ins. Co., 119 Iowa 555, 93 N.W. 569, 60 L.R.A. 838, 97 Am.St.Rep. 330, upon which much reliance has been placed by counsel for appellee. The latter case arose under a policy of plate glass insurance, similar to those in suit here, containing the condition that the insurer was not liable to make good loss or damage which might happen "by or in consequence of any fire." It appeared from the agreed facts of that case that the breaking of the glass was caused by the explosion of gas, emanating from gasoline, the gas having been ignited by a match or other light in the room in which the gasoline was kept and used, and that the "breakage of the glass and the explosion occurred prior to the fire in said building." The court there adopted the same definition of the word "fire," as used in the condition of the plate glass policy, which was held by our Supreme Court to be proper in construing the fire policy in the Hyman Case. Accordingly it was said in the Iowa case cited: "The lighted match or other light in the building was not contemplated by the parties as the fire which was excepted by the terms of the policy. It was not a destructive fire against the immediate effect of which the condition in the policy was intended as a protection." And again: "We cannot too strongly emphasize the thought that the match or other light mentioned in the agreed statement of facts was not a fire, within the meaning of the condition of the policy now under consideration." Following the same course of reasoning pursued in the Hyman Case, and citing the same line of authorities in support of its conclusion, the Iowa court decided that the breaking of the glass in the case before it was caused by the explosion, and not by any fire. The fact that the insured glass was broken before the fire started in that case made it impossible to say that the loss under the glass policy happened in consequence of the fire; and the decision does not materially assist in the solution of the problem here presented.

In this case it can hardly be doubted that the explosion of the dynamite by the intense heat of the fire was an incident to the conflagration, which preceded and was then in full progress. A contrary inference would be in direct contradiction of the facts found by the district court and here conceded to be true. "The proximate cause is the efficient cause, the one that necessarily sets the other causes...