Pappadakis v. Netherlands Fire & Life Ins. Co.

• Decision Date: 21 January 1926
• Docket Number: 19408.
• Citation: 242 P. 641,137 Wash. 430
• Court: Washington Supreme Court
• Parties: PAPPADAKIS v. NETHERLANDS FIRE & LIFE INS. CO. et al.

242 P. 641

137 Wash. 430

PAPPADAKIS v. NETHERLANDS FIRE & LIFE INS. CO. et al.

No. 19408.

Supreme Court of Washington

January 21, 1926

Department 2.

Appeal from Superior Court, King County; Claypool, Special Judge.

Action by T. Pappadakis, sole trader doing business under the name of the Athenian Confectionery & Bakery, against the Netherlands Fire & Life Insurance Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Fred G Clarke, of Seattle, for appellants.

Paul Carrigan, of Seattle, for respondent.

MAIN, J.

This action is based upon fire insurance policies issued by the defendants. The cause was tried to the court without a jury and resulted in findings of fact, conclusions of law, and a judgment sustaining a recovery in the sum of $600. From this judgment the defendants appeal.

The respondent, under the name of the Athenian Confectionery &amp Bakery, operated a bakery in Pike Place Market in the city of Seattle. Upon his fixtures and stock of supplies the appellants had issued fire insurance policies, each of which provided 'against all direct loss or damage by fire.' In Pike Place Market there had been installed a sprinkler system intended for the purpose of extinguishing fires should any occur. One of the sprinkler heads was directly above a bake oven in the respondent's bakery. In the top of this oven there was a crack. On October 5, 1923, flame from the fire in the over escaped upwards through this crack heated the automatic sprinkler head to such a temperature that the sprinkler was released and threw a large quantity of water over the bakery and the stock therein. The appellants denied liability, claiming that the loss was caused by the sprinkler and was not due to fire; in other words, that it was not within the terms of the policies.

Upon the question as to whether there was a crack in the top of the oven and the fire escaped through it, extended upwards, and heated the sprinkler head so that it opened, the evidence is in dispute. The trial court found this to be the fact, and under the evidence this finding must be sustained. The question, then, is, Since there was no ignition or charring or burning outside of the oven, was this a fire loss?

It is a rule supported by the authorities that where the fire does not escape from its proper place, that is, where it was intended to be, and there is no ignition or charring of wood by reason of the heat, that there cannot be a recovery for such damages as may result from soot or smoke. The Law of Insurance, Joyce (2d Ed.) vol. 4, § 2796. Cannon v. Phoenix Insurance Co., 110 Ga. 563, 35 S.E. 775, 78 Am. St. Rep. 124; Fitzgerald v. German-American Ins. Co., 30 Misc. 72, 62 N.Y.S. 824. Upon that proposition there seems to be no dispute.

In the present case, however, the facts do not bring it within the rule. Here the fire did escape from its accustomed place, and where it was intended to be, heated a sprinkler head, and the damage resulted. The precise question is whether under such facts there was a fire loss, or, as it is sometimes referred to, a hostile fire. In 26 C.J. 340, it is said:

'It must be a hostile fire, that is, one which becomes uncontrollable or breaks out from where it was intended to be, and becomes a hostile element; and, where there is such a fire, recovery may be had for resulting losses or damages in regard to which there has been no actual ignition, such as a loss or damage caused by smoke and soot, or by heat.'

In Way v. Abington Mutual Fire Insurance Co., 166 Mass 67, 43 N.E. 1032, 32 L. R. A. 608, 55 Am. St. Rep. 379, it was held that, where a fire was lighted in a stove by the occupant of the room for the purpose of his business, and ignited the soot accumulated in the chimney into which the pipe of the stove entered, and the chimney became obstructed by the falling of the lining and scales of soot, causing the smoke from the burning soot to escape into the room and damage the property, such damage was covered by an insurance policy which provided against loss or damage by fire. The reason for the holding was that the fire, when it escaped into the chimney, was not in the place where it was intended to be, and therefore was a hostile fire. Whether, if the immediate question were before us, we would be inclined to the view that a fire in a chimney is out of the place where it is intended to be will not here be determined. The case is cited for the purpose of showing the position of the court upon the question as to the rule to be applied when the fire...