Reliance Ins. Co. v. Naman

• Decision Date: 23 May 1928
• Docket Number: (No. 909-4979.)
• Parties: RELIANCE INS. CO. v. NAMAN.
• Court: Texas Supreme Court

Page 743

6 S.W.2d 743

RELIANCE INS. CO. v. NAMAN.

(No. 909-4979.)

Commission of Appeals of Texas, Section B.

May 23, 1928.

Certified Questions from Court of Civil Appeals of Tenth Supreme Judicial District.

Action by W. W. Naman against the Reliance Insurance Company. Judgment for plaintiff, and defendant appealed to the Court of Civil Appeals, which certified a question to the Supreme Court. Question answered in the affirmative.

Thompson, Knight, Baker & Harris and George S. Wright, all of Dallas, for appellant.

Jas. P. Alexander, Harry Jones and Spell, Naman & Penland, all of Waco, for appellee.

SPEER, J.

This cause is before us upon the following certificate from the Tenth District:

"This suit was filed by appellee against appellant to recover damages to certain jewelry caused by fire. It was alleged that said jewelry was insured under a policy issued by appellant to appellee, and while said policy was in full force and effect said jewelry was damaged by fire, and that appellant was legally liable for such damage. The appellant answered that the fire which damaged said jewelry was not such a fire as was contemplated by the policy, and that there was no liability for said loss or damage by fire, for the reason that a servant of the assured placed the jewelry, together with inflammable substances, in a furnace located in the assured's residence, and that a fire which was purposely built in said furnace caused the loss and damage to said jewelry; that said furnace was constructed for containing fires therein built; that the fire which damaged the jewelry was contained solely within said furnace; and that such damage was not one covered by the policy of insurance. The case was tried before the court without a jury upon an agreed statement of facts. The court rendered judgment against appellant for $2,584.15; the same being the agreed damage to said jewelry, together with 6 per cent. interest on same from June 3, 1926. Appellant duly perfected its appeal to this court, and said cause has been submitted to this court and is now under consideration.

"The question herein involved is one of law only, and is a question of very great importance in the law of insurance, and the members of this court are very much in doubt as to how said question of law should be decided. The material parts of the agreed statement on which the cause was tried in the trial court are as follows: On January 19, 1926, the wife of appellee placed the jewelry which was ordinarily used by her in a paper hat box in a clothes closet of said dwelling house described in said policy; that in said box there was some tissue paper; that the purpose of appellee's wife in placing said jewelry in said hat box was for safe-keeping as a hiding place against burglars; that said jewelry remained in said hat box, with the intention of appellee's wife of using the same from time to time, until January 23, 1926, on which date one of the servants employed in said dwelling house by appellee, while cleaning house, discovered the hat box in question, and, not knowing it contained the jewelry in question or anything else of value, but thinking the same contained only waste matter, handed said hat box to another servant who worked in the house, and directed her to throw it in the furnace in the basement as trash, and the servant who took said box, believing that it contained only waste paper or trash, threw it, with all of its contents, including said jewelry, into said furnace of said dwelling house; that said furnace was used in heating said dwelling, and at the time said box was thrown into said furnace it contained sufficient fire to ignite and did ignite and destroy said box and damage the jewelry contained in said box to the amount of $2,500; that at the time said box was thrown into said furnace neither of said servants knew that it contained said jewelry, or anything else of value; that the fire in the furnace, in its usual place and of a usual volume for heating purposes, damaged said articles while in said furnace in the sum of $2,500; that at the time of said damage said jewelry was covered by the policy sued upon. Notice of said loss was duly given, and appellant denied liability on June 3, 1926. In the trial court, as above stated, appellee recovered $2,500, the agreed damage to said jewelry, together with 6 per cent. interest on same to June 3, 1926, the date on which appellant denied liability, making a total of $2,584.15.

"The cause is presented to this court upon one proposition as follows:

"Where a servant of the assured under a policy of fire insurance inadvertently placed jewelry in a furnace fire for heating the residence of the assured, and said jewelry was destroyed or damaged by a fire wholly confined to such furnace, such damage was due to a friendly fire, for which the insurance company is not liable.

"This proposition of law was the only one urged in the trial in the court below. The court overruled the same, and rendered judgment for appellee. This is the only question involved in this case. There is only one case in the United States that we have found or that is cited by either side that is at all similar in its facts, to wit, the case of Weiner v. St. Paul Fire & Marine Ins. Co., 124 Misc. Rep. 153, 207 N. Y. S. 279. However, we think this case was poorly considered and of little value as authority, and we think is distinguishable from the case before this court. The only other case, which we think is nearer in point in its facts, is a French decision copied in 23 Irish Law Times & Solicitors' Journal, March 30, 1889, p. 169, styled Countess Fitz-James v. The Union Fire Insurance Company of Paris. Both of those cases are referred to in the briefs of both parties and copied in full in appellant's brief. Many cases are cited both by appellee and appellant, but none similar to the case at bar. The policy made the basis of this suit insured appellee "against all direct loss or damage by fire," with certain specified exceptions, but none of said exceptions cover the circumstances under which this fire occurred. We refer to and make a part of this certificate the agreed statement of facts, which includes the policy on which the suit was based. By reason of the importance of the question of law involved, and because of the grave doubt among the members of this court as to how said question should be decided, we certify to the Supreme Court for its determination upon the agreed statement accompanying this certificate, the following question:

"First Question.

"Did the trial court err in holding that the appellant was liable for the damage to said jewelry?"

The policy having insured the appellee "against all direct loss or damage by fire," it becomes important to determine whether or not the loss in this case has been sustained by "fire" within the meaning of that contract. It is uniformly held that the loss must be by a hostile fire; that is, one which becomes uncontrollable or breaks out from where it was intended to be, and becomes a hostile element. Weiner v. St. Paul, etc., Co., 124 Misc. Rep. 153, 207 N. Y. S. 279; Cannon v. Phœnix Ins. Co., 110 Ga. 563, 35 S. E. 775, ...