Nave v. Home Mut. Ins. Co.

• Decision Date: 31 March 1866
• Citation: 37 Mo. 430
• Parties: ABRAM NAVE et als., Respondents, v. HOME MUTUAL INSURANCE COMPANY, Appellant.
• Court: Missouri Supreme Court

37 Mo. 430

ABRAM NAVE et als., Respondents,

v.HOME MUTUAL INSURANCE COMPANY, Appellant.

Supreme Court of Missouri.

March Term, 1866.

Appeal from St. Louis Circuit Court.

Grover, Sharp, & Broadhead, for appellant.

The contract of insurance is a contract strictissimi juris. (1 Phil. Ins. 231.) It will embrace no other property than that described. In this case, the insurance is upon a “brick building, occupied as a wholesale and retail grocery store.” It is not contended that a change in the building was caused by the assured, or indeed that there was any change or alteration in the building at all.

In this case the company did not insure a lot of rubbish, but a building. Nothing was insured in this case but a “building used as a wholesale and retail grocery store,” and the company is liable for the loss of nothing else.

In case of insurance against loss or damage by fire only, as in this case, the underwriter can only be held liable where the fire is the effective and direct cause of the destruction of the subject or thing insured. (1 Phil. Ins. p. 625, § 1097.)

The risk or peril insured against includes only the direct effect or result of the cause or agency insured against--on the thing insured--not a remote or incidental result. (1 Phil. Ins. 667-72; 12 Eastm. 647-52.)

If the brick house fell down from a defect in its construction, or from the floors being overladen by plaintiffs, and this falling caused its destruction, and also caused fire in the ruins after it had fallen, the underwriter is not liable. (Boyd v. Du Boys, 3 Camp. 133.)

Glover & Shepley, for respondents.

The instruction given on defendant's motion declares that “if the house fell before the fire, the defendant was liable for such damage as the fire occasioned, and cannot be controverted here by him.” This instruction substantially told the jury that damages occasioned by fire under such circumstances were recoverable on the policy.

The falling of the house was an accidental cause of the fire, and as much covered by the policy as an earthquake, lightning, or fermentation, when they cause fire to the injury of insured property.

Take it in its strongest aspect as a loss remotely occasioned by the negligence of the assured, and this has always been held not to discharge assurers. (2 Arn. Ins. 764-7, §§ 284-5, and cases there cited. See remarks of Denio, J., at p. 19, and Johnson, J., at p. 523, of St. John v. A. F. & M. Ins. Co., 1 Kern. 516; Holdsworth v. Wise, 7 B. & Cr. 794.)

HOLMES, Judge, delivered the opinion of the court.

It was conceded that there was evidence in the case tending to show that the building, which was the subject insured, being used as a store and warehouse, and the floors being heavily loaded with merchandise, by reason of the overloading, or of some defect of construction, before the happening of the fire, and without any agency of fire, fell down and became a...