Northwestern Nat. Ins. Co. v. Mims

• Decision Date: 09 December 1920
• Docket Number: (No. 1145.)
• Parties: NORTHWESTERN NAT. INS. CO. v. MIMS.
• Court: Texas Court of Appeals

226 S.W. 738

NORTHWESTERN NAT. INS. CO. v. MIMS.

(No. 1145.)

Court of Civil Appeals of Texas. El Paso.

December 9, 1920.

Error from District Court, Midland County; Chas. Gibbs, Judge.

Action by Mrs. Ida B. Mims against the Northwestern National Insurance Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Thompson, Knight, Baker & Harris, of Dallas, for plaintiff in error.

Garrard & Baker, of Midland, for defendant in error.

HIGGINS, J.

The plaintiff in error on July 2, 1917, issued to the defendant in error, Mrs. Mims, an insurance policy whereby, for a term of one year, it insured a one-story brick building in Midland, Tex., "against all direct loss or damage by fire except as hereinafter provided, to an amount not exceeding $2,500." The policy provided:

"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. * * *

"If a building or any part thereof fall, except as the result of fire, all insurance by this policy on such building or its contents shall immediately cease."

This suit was brought upon the policy by Mrs. Mims, it being alleged that the insured building had been completely destroyed by fire on May 28, 1918. A verdict was returned and judgment rendered in her favor for the face of the policy with interest.

The undisputed evidence shows that about midnight on May 28, 1918, a terrific explosion occurred in the Westmoreland Building immediately adjacent to and adjoining the Mims Building. The explosive substance was vaporized gasoline. The only person present at the time of the explosion was Tom Carr, an employee of the pool room which was conducted in the Westmoreland Building. His dead body was found upon the ground about four feet from the back door of the Westmoreland Building. This explosion completely demolished the Westmoreland Building. The parties who first arrived upon the scene found the ruins of the Westmoreland Building enveloped in flames. These parties also found the Mims Building almost completely demolished by the force of the explosion and also on fire. The testimony shows that three of its walls were practically demolished and the fourth one in a badly damaged condition. The roof was practically intact, but had fallen. When these parties arrived the flames had not progressed greatly in the Mims Building. It seems that the flames then were merely around the edge of the roof on the north side and were later extinguished, but not until some damage had been inflicted thereby.

In substance the court charged that the defendant was not liable if the loss resulted from an explosion, but was liable if fire broke out in the building, or an adjoining building, or was set to said building, which caused an explosion and wrecked the building, and instructed the jury to find for plaintiff if it found that fire broke out in or was set to the building or an adjoining building, and as a direct result of said fire an explosion occurred which wrecked the Mims Building, and as a direct result of the fire and explosion the plaintiff's building was destroyed, and to find for defendant if an explosion occurred in or near the Mims Building which directly wrecked and destroyed it.

Under its first assignment the plaintiff in error complains of the refusal of a peremptory instruction to find in its favor and presents for determination the effect of the explosion and falling building clauses in the policy as applied to the facts. The effect of these clauses is also presented under other assignments.

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. 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. It was held to be an issue of fact under the evidence whether the fire preceded and caused the explosion, or was subsequent to and caused by the explosion, but the case was reversed on account of the failure to give a correct charge upon the burden of proof. Ins. Co. v. Westmoreland, 215 S. W. 471.

In Ins. Co. v. Thompson, 220 S. W. 796, a recovery was had by the owner of personal property in the Westmoreland Building and the judgment was sustained by this court. Considering first the effect of the falling building clause, we are of the opinion that it presents no defense to any loss sustained by Mrs. Mims to the building caused by the fire ensuing therein after the explosion.

Had the building fallen as the result of a cause independent of an explosion, the insurance would have immediately ceased, and the insurer would not have been liable for loss resulting from an ensuing fire. Ins. Co. v. Tomkies, 30 Tex. Civ. App. 404, 71 S. W. 812, affirmed in 96 Tex. 193, 71 S. W. 812, 814. But the falling building clause is immediately preceded by the explosion clause which governs in case of an explosion. The two clauses must be considered together. The parties to the contract have carefully and specifically defined the liability of the insurer in case of an explosion and ensuing fire, and the liability thus fixed should not be defeated by a strict and literal application of the falling clause. This question has been considered by other courts in suits upon policies containing the same or similar provisions as here presented, and it has been uniformly held that, where an explosion occurs, causing the building to fall, and fire ensues which inflicts damage, liability for the loss caused by the fire attaches under the explosion clause and is not defeated by the falling clause. The leading case upon this subject is Dows v. Ins. Co., 127 Mass. 346, 34 Am. Rep. 384, wherein Dows sought to recover upon a policy containing provisions substantially the same as here presented. The policy covered a stock of goods. The building in which the goods were situated was wrecked by an explosion produced by the sudden combustion of inflammable gas. Fire ensued and destroyed the plaintiff's goods. The contention was made by the insurer that the falling building clause terminated the insurance immediately upon the fall, and that it was not liable for the damage inflicted by the ensuing fire. This contention was ruled against the insurer upon the reasoning above indicated.

The decision was followed by the Supreme Court of Michigan in Davis & Co. v. Ins. Co., 115 Mich. 382, 73 N. W. 393, by the Supreme Court of California in Rossini v. Ins. Co., 188 Pac. 564, and by the United States Circuit Court of Appeals in Leonard v. Ins. Co., 109 Fed. 286, 48 C. C. A. 369, 54 L. R. A. 706. The policies in the Davis, Rossini, and Leonard Cases contained the same provisions as the policy issued to Mrs. Mims. The Leonard Case later was before the Circuit Court of Appeals in appeals from judgments rendered against the insurers in accordance with the ruling made upon the first appeal. The judgments against the insurers were affirmed (Orient Ins. Co. v. Leonard, 120 Fed. 808, 57 C. C. A. 176, and Phenix Ins. Co. v. Leonard, 121 Fed. 1021, 57 C. C. A. 680), and writs of certiorari denied by the Supreme Court (187 U. S. 645, 23 Sup. Ct. 845, 47 L. Ed. 347). These decisions we regard as correct, and since the fall was caused by an explosion, upon which fire immediately ensued, the insurer was liable for the damage inflicted by the fire. See, also, 14 R. C. L. 1100; note 32 L. R. A. (N. S.) 607.

The question now recurs as to the liability of the plaintiff in error for the loss sustained by the explosion. The explosion wrecked the Mims Building and inflicted the major part of the damage; the loss and damage resulting from the ensuing fire not being great. This necessitates a consideration of the effect of the explosion clause where the explosion occurs in and is caused by an antecedent fire in a building other than the insured premises.

In Hustace v. Ins. Co., 175 N. Y. 292, 67 N. E. 592, 62 L. R. A. 651, the policy contained the same provisions as does the Mims contract. In that case the Tarrant Building in the city of New York caught fire, and shortly thereafter a terrific explosion occurred in the building caused by the fire therein. The plaintiff's building, a short distance away, was wrecked by the force of the explosion and became a total loss. After the fall of plaintiff's building the debris caught fire and burned, but the plaintiff made no claim to recover for such burning, and the question was presented as to the liability of the insurer for the loss resulting from the explosion. The plaintiff insisted that the wreck of his building was direct loss or damage by fire within the meaning of the policy, and that the situation called for precisely the same disposition as if the question was presented in an action upon a policy covering the Tarrant Building, where fire raged for about 30 minutes before the explosion.

This apparently was the first case in which the court had occasion to consider the effect of the explosion exemption clause which had been inserted in the contract in accordance with the legislative provisions of the state of New York. The court reviewed a number of decisions of that state and other states and held that the contract insured the "plaintiff against all direct loss or damage by fire and relieves the insurer from liability for all loss caused directly or indirectly by explosions of any kind, and...