New Hampshire Fire Ins. Co. v. Rupard

• Decision Date: 23 March 1920
• Parties: NEW HAMPSHIRE FIRE INS. CO. v. RUPARD ET AL.
• Court: Kentucky Court of Appeals

220 S.W. 538

187 Ky. 671

NEW HAMPSHIRE FIRE INS. CO. v. RUPARD ET AL.

Court of Appeals of Kentucky.

March 23, 1920

Rehearing Denied May 4, 1920.

Appeal from Circuit Court, Clark County.

Action by Thomas Rupard and others against the New Hampshire Fire Insurance Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Gordon & Laurent and Frank M. Drake, all of Louisville, for appellant.

Benton & Davis, Pendleton & Bush, and B. R. Jouett, all of Winchester, for appellees.

HURT J.

In the circuit court the appellant, the New Hampshire Fire Insurance Company, and each of the following named insurance companies Ph nix Assurance Company, Limited, of London, Boston Insurance Company, Equitable Fire & Marine Insurance Company Michigan Commercial Insurance Company, Germania Fire Insurance Company of New York, Caledonian Insurance Company the Connecticut Fire Insurance Company, Northern Fire Insurance Company, Henry Clay Fire Insurance Company, and the North American Assurance Company--were defendants in separate actions, which were instituted against them by the appellees, Thomas Rupard et al. who were partners, and engaged in the business of merchants in Winchester. The appellees held a policy of insurance in each of the companies, which insured them against damages, to their goods and wares, and the fixtures in their place of business from fire. Each of the policies contained the following stipulation:

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

The petitions averred that on June 1, 1918, the appellees suffered damages in the sum of $5,501.25 from the partial destruction of their stock of merchandise by fire, and $884.40 from partial destruction of the fixtures by the same fire, while the merchandise and fixtures were in their business house, which was designated in the policies.

The insurance companies each filed an answer, wherein the amounts of the losses were denied, but damage in the sum of $385.99 to the stock of merchandise by fire was admitted. Each of the companies also in its answer relied upon the clause in the policy which exempted it from liability, for damages suffered by the insured property from explosion, and affirmatively averred that practically all the damages suffered by the property and complained of in the petitions were caused by an explosion of gas, which took place underneath the floor of the building, and the only damage by fire was from a fire which ensued after the explosion, and that such damage amounted to the sum of $385.99 only.

The replies denied that the damages resulted from the explosion, or that the damage by the fire amounted only to the sum admitted in the answers, but admitted that an explosion did occur, and averred that the building and goods were on fire before the explosion, and the explosion was a result of the antecedent fire, and the fire was not the result of the explosion.

By agreement of the parties, the 11 actions were tried together, and a joint verdict and judgment rendered as if there had been but one action. By further agreement the appeals of all are made upon one record and considered as if but one appeal under the style above named.

The trial resulted in a verdict by the jury in favor of the appellees in the sum of $4,500 damages to the goods and wares, and $800 to the fixtures, and a joint judgment against the defendants for the damages was rendered.

The defendants' motion for a new trial being overruled, they have appealed, and urge as grounds for a reversal: (1) That the court erred in overruling their motion for a directed verdict at the close of the plaintiff's evidence and at the close of all the evidence; and (2) that the court erred in giving and refusing instructions to the jury.

There is substantially no dispute as to the facts relative to the manner of the losses, that is, the facts, the occurrence of which was visible, but the inferences from the visible facts are susceptible of much dispute. The room in which the goods, wares, and merchandise were stored, which was covered by the policies of insurance, was 75 feet in length, 21 feet in width, and 10 or 11 feet from floor to the ceiling. About 15 feet from the rear end of the room, and rather to one side from the center, was situated a gas stove, used for heating the room, and was supplied with natural gas by a pipe, which protruded through the floor from underneath at that place. Underneath the floor, at the front end of the room, was a cellar about 15 feet in length and the same in width. The distance from the rear end of the cellar to the location of the pipe was about 45 feet, and from the cellar to the rear wall of the room the ground approached so near to the floor that the space was insufficient to permit the body of a man to crawl between them. On the morning of the day upon which the losses occurred, the appellees removed the stove, and severed its connection with the pipe. In the afternoon, the services of a plumber were secured by some one for the purpose of ascertaining whether there was a leak of the gas from the pipe, and, if such was discovered to be true, presumably to remedy the defect in the pipe. Strangely, the record does not indicate who it was that secured the services of the plumber, or why it was that it was apprehended there was a leak of the gas, but the plumber came into the building and went to where the pipe had been disconnected from the stove, but did not discover the odor of gas, and then he went to the front end of the room, and descended into the cellar, but, finding that the cellar did not extend back to the pipe, and the space between the floor and the ground underneath was not of sufficient depth to enable him to reach the place where the pipe was, he returned into the storeroom with the statement that he would have to remove some of the boards which compose the floor to enable him to continue the investigation. He then did remove two short boards from the floor near the place where the pipe had been connected with the stove. At this time the doors and windows of the house were open, and had been during the day. The plumber states that his organ of smell is susceptible to the odor of gas, and that he had not discovered the presence of gas anywhere upon the premises, and after removing the boards he yet was unable to detect the odor of gas. He then lighted a match, and held it near to the aperture which he had made in the floor, presumably for the purpose of enabling him to see underneath the floor through the aperture. A flame of fire immediately occurred, which at the first was drawn down through the aperture, but immediately came back and proceeded to blaze upward. The flame at the first was small, but rapidly grew to 3 or 4 feet in height. The boards of the floor around the aperture, for 2 or 3 feet took fire, and the fire spread in lines to several feet from the hole in the floor. A table, upon which the merchandise was piled, began to burn, and also the merchandise upon it. Shoes and papers upon the floor, clothing and other articles near by, took fire and were burning. The flame grew until it reached nearly to the ceiling of the room. The plumber inquired where the meter was situated, and, being informed by one of the proprietors, started toward the front of the room. One of the proprietors was about 15 feet away from the fire, in conversation with a customer when his attention was attracted to it, which he says was then 5 or 6 feet in height from the floor. The floor was burning as well as the table near by, and he stepped to the table and began to attempt to beat out the flames upon the burning clothing with his hands. Another of the proprietors was engaged about 15 feet away when his attention was attracted to the flame, and, approaching it; he was directed to call the fire department, which he started to do, and got to near the front of the room. At this time, an employé who was near by seized a bucket of waste water from the cooler, and threw it upon the flames, when immediately an explosion underneath the floor occurred, which blew out the windows in the room and nearly wrecked the building. The time which transpired between the lighting of the match and the explosion cannot from the evidence be definitely fixed, as the opinion of the witnesses differ, and under the excitement of the moment it is apparent that their mere opinions would not be of much value, but the plumber, after seizing a wrench, started toward the front of the building, and had gone about 40 feet when the explosion occurred, and the one who started to call the fire department did not reach the front of the building before the explosion, but some appreciable time had expired between the lighting of the match and the time when the plumber and the other started toward the front of the building, and hence from the time of the lighting of the match to the explosion was probably a period from three to five or six minutes. Whether the fire department ever arrived does not appear, but certain other parties after the explosion quenched the flames by the use of water and chemicals for the extinguishment of fire. The floor for several feet around the hole made by the removal of two short boards was charred and burned; the boxes upon the shelves in the room were scorched from heat and flames, and much of the merchandise showed the effects

of burning. The injuries to the merchandise consisted in its being burned, scorched, torn, broken, and injured by water and chemicals, all of which were the results of fire and the efforts to subdue the fire, and the explosion.

The overruling of the appellants' motion for a directed verdict in their favor at...