Scully v. Bremer County Farmers' Mut. Fire Ins. Ass'n

• Decision Date: 22 November 1932
• Docket Number: 41379
• Citation: 245 N.W. 280,215 Iowa 368
• Parties: W. P. SCULLY, Appellee, v. BREMER COUNTY FARMERS' MUTUAL FIRE INSURANCE ASSOCIATION, Appellant
• Court: Iowa Supreme Court

245 N.W. 280

215 Iowa 368

W. P. SCULLY, Appellee, v. BREMER COUNTY FARMERS' MUTUAL FIRE INSURANCE ASSOCIATION, Appellant

No. 41379

Supreme Court of Iowa, Des Moines

November 22, 1932

Appeal from Bremer District Court.--M. F. EDWARDS, Judge.

Appeal from judgment permitting recovery on fire insurance policy.

Affirmed.

McCoy & Beecher, for appellee.

Sager & Sweet, for appellant.

CLAUSSEN J. STEVENS, C. J., and EVANS, ALBERT, KINDIG, and BLISS, JJ concur.

OPINION

CLAUSSEN, J.

Appellant insured a dwelling house, owned by appellee, against loss or damage by fire. The house was equipped with an acetylene gas lighting plant, which became out of order. In the process of adjusting it, a quantity of gas escaped into the basement of the house and was ignited by the flame of a lighted gas jet, with the result that the expanding gases blew a large part of the foundation from under the house and caused other damage. It is doubtful whether any of the material of the house was set on fire. In any event, the damage due to actual burning of such material was of no consequence.

Proper proof of loss was made. The parties have agreed upon the sum in which the house was damaged. Appellant denied liability on the ground that the damage was not occasioned by fire. Trial was had to the court and judgment was entered, for the agreed amount, against appellant, from which it appeals.

The contract of insurance contains no language germane to the the case which excepts liability for damage by explosion.

The appeal presents only one question, namely, was the damage to the house occasioned by fire?

The question has its answer in the holding of this court in Furbush v. Consolidated Patrons' of the Farmers Mutual Insurance Co., 140 Iowa 240, 118 N.W. 371. In that case the pertinent provisions of the contract of insurance were substantially similar to the contract in this case. The thing insured against was damage by fire. Explosions were not excepted. In that case, as in this, loss was occasioned by the ignition of acetylene gas. In that case the gas was ignited by a lamp; in this, by an open lighted gas jet. In that case, as in this, damage due to actual burning was negligible. In that case, as in this, damage was due to the violent expansion of the burning gases, or as the parties put it, to the explosion of the gas. In that case, as in this, the burning gases produced flame. In that case recovery on the contract of insurance was permitted, and in the case at bar, it must be held that the damage complained of was occasioned by fire, and that appellee's recovery is proper, unless our former case is overruled. The court is not disposed to overrule the case.

It is contended that the holding of the court in Furbush v. Insurance Co., 140 Iowa 240, 118 N.W. 371, is not in harmony with Vorse v. Jersey Plate Glass Ins. Co., 119 Iowa 555, 93 N.W. 569; Githens v. Great American Ins. Co. of New York, 201 Iowa 266, 207 N.W. 243, and Sigourney Produce Co. v. Milwaukee Mechanics' Ins. Co., 211 Iowa 1203, 235 N.W. 284.

In Vorse v. Jersey Plate Glass Ins. Co., 119 Iowa 555, 93 N.W. 569, action was brought on a policy insuring certain plate glass in a building owned by plaintiff against loss or damage by breakage through accident. The policy contained this provision:

"This Company is not liable to make good any loss or damage which may happen by or in consequence of any fire."

It appears that the items of damage involved in that case were occasioned by the explosion of fumes of gasoline which were unintentionally ignited by a match or light in some room in the building. It fairly appears that the glass was instantly shattered by the expanding gases, and that as a result of the explosion the building was set on fire. In this situation it was contended that the damage to the glass was occasioned by or in consequence of fire. In discussing the contention of the insurance company the court says:

"The real point made is that the explosion was due to, or was in consequence of fire, if not fire itself. * * * In the case before us, it (the explosion) was undoubtedly caused by fire, or as stated in the agreed statement of facts 'by a match or light in the room' which transformed the gasoline gas into heat which was propagated from one particle of air to another and finally against the glass, the shock of which caused the breakage complained of. The stipulation says that the breakage and explosion occurred prior to the fire in the building which we assume means that the glass was broken before any part of the structure or of the goods therein were ignited for it is clear that there must have been a match or light in the room which caused the explosion. Did the breakage then happen by or was it in consequence of any fire?"

Proceeding to the determination of this question the court said:

"The question is a nice one and by no means free from doubt; but we are inclined to the view that the loss did not happen by nor was it in consequence of any fire as those terms are used in the policy in suit. Of course but for the lighted match or other light in the room the explosion would not have happened and the explosion itself was due to rapid combustion. But in ordinary parlance the damage was due to the explosion or to the concussion produced thereby or as said in the agreed statement of facts the explosion and breakage occurred prior to the fire in the building. The lighted match or other light in the building was not contemplated by the parties as the fire which was excepted by the terms of the policy. It was not a destructive fire against the immediate effects of which the condition in the policy was intended as a protection. It was it is true, the possible means of putting the destructive force in motion but was not the excepted peril. Had there been no fire after the explosion it seems to us it could not fairly be claimed that the damage done the glass was due to or in consequence of any fire. The immediate cause of the breakage was concussion produced by the ignition of gas it is true; but that such an effect was due to or in consequence of fire as that term is ordinarily used or as the parties intended it in this case is hardly supposable. * * *

"Policies of insurance should not have a technical construction for the purpose of defeating the insured. He has nothing to do with the wording of the policy, and must accept it as tendered. Hence the rule of construction hitherto quoted. Indeed, we think language such as that on which defendant relies should be given its ordinary and common signification, and not its scientific and technical meaning. The insured went to the company for a policy of insurance on the plate glass in her building, and received a...