Smiley v. Citizens P. M. & L. Ins. Co.

• Decision Date: 09 November 1878
• Citation: 14 W.Va. 33
• Court: West Virginia Supreme Court
• Parties: Smiley v. Citizens P. M. & L. Ins. Co.

14 W.Va. 33

Smiley

v.Citizens P. M. & L. Ins. Co.

Supreme Court of Appeals of West Virginia.

Decided November 9, 1878.

1. The policy contains an exception to the risk as follows: "That this corporation shall not be liable to make good any loss, or damage, by tire, which may happen, or take place, occasioned by explosions of any kind, by means of invasion, insurrection, riot or civil commotion, or of any military or usurped power." Held:

The company intended not only to guard against all loss, or damage, by fire occasioned by means of either invasion, insurrection, riot or civil commotion, or of any military or usurped power, but also intended to guard against all loss, or damage, by tire, which may happen or take place, occasioned by explosions of any kind.

2. The fire in this case was not occasioned by explosions of any kind.

The plaintiff is not bound by the erroneous statement of the cause of the fire, made in the preliminary proofs, but may fix the defendant's liability by proof of the true cause of the loss, without regard to the statement in the preliminary proofs: there being no fraud.

4. The contracting parties did not intend by the special premium to exempt from the printed exception the explosion risk, but did intend the special premium, because of the extra hazard, of lire risks, designated in memorandum of special hazard.

Supersedeas to a judgment of the circuit court of Ohio county, rendered on the 20th day of August, 1874, in an action of assumpsit, in said court then pending, wherein Robert Smiley was plaintiff and the Citizens' Fire, Marine and Life Insurance Company of Wheeling was defendant, granted on the petition of said Smiley.

Hon. Thayer Melvin, judge of the first judicial circuit rendered the judgment complained of.

The facts of the case fully appear in the opinion of the court.

John E. McKennan for plaintiff in error.

Daniel Lamb, |fbr defendant in error, cited the following authorities:

10 Allen 218, 220; 4 East, 135, 136; Parsons on Mer. Law 498; 45 N. Y. 110; 3 Keyes 457, 460; 7 Bosw. 389, 392; 30 Md. 108; 22 Ohio St. 352; 7 Wall. 44; Law Rep. 3 Exch. 7.1; 53 N. Y.446; 16 B. Mon. 427; 17 Gratt. 145. Moore, Judge, delivered the opinion of the court:

The plaintiff, Robert Smiley, presents this case upon a supersedeas to a judgment, rendered by the circuit court of Ohio county, August 20, 1874, in an action of assumpsit on a policy of insurance, made by the defendant upon certain property of R. Lafferty & Co.

The action was instituted by Robert Lafferty and Robert Smiley, partners trading under the name and style of R. Lafferty & Co., and the said Lafferty having died, the action was ordered to be proceeded with in the name of the surviving partner, Robert Smiley.

Issue was joined on the plea of non-assumpsit, and by agreement the trial of the issue was submitted to the court in lieu of a jury; which issue the court found for the defendant, and gave judgment accordingly. To which finding and judgment of the court the plaintiff excepted, and moved the court to set aside said finding and judgment, and grant a new trial, upon the ground that said finding and judgment were contrary to the law and evidence. The court having overruled said motion, the plaintiff excepted to the opinion of the court, and took his bill of exceptions, setting forth the evi dence.

It appears from the evidence, that the defendant by its policy number 1919, dated February 20, 1877, insured R. Lafferty & Co. for one year, to the amount of $1,000.00, against loss or damage by fire on a building and part of its contents, "occupied as a petroleum refinery and treating house," in consideration of ten per cent, premium.

The printed portion of the policy contained the following clause: "Provided always, and it is hereby declared, that this corporation shall not be liable to make good any loss or damage by fire, which may happen, or take place, occasioned by explosions of any kind, by means of invasion, insurrection, riot, or civil commotion, or of any military or usurped power, or any loss by theft at or after a fire."

The policy also contained the following clause: "And that this policy is made and accepted in reference to the terms and conditions hereunto annexed, which are to be used and resorted to, in order to explain the rights and obligations of the parties hereto, in all cases herein not otherwise specially provided for."

In the 8th condition annexed to the policy, it is provided, as follows: "This company will not be liable for damage to property by lightning, aside from fire, nor for damage occasioned, by the explosion of a steam boiler, nor for damage by fire resulting from such explosion * * * * * unless otherwise expressly provided."

The 11th condition annexed to said policy provides among other things, that "All persons insured by this company, and sustaining loss or damage by fire, are forthwith to give notice thereof to the company or its agent; and so soon after as possible to deliver in a par--ticular account of such loss or damage, signed with their own hands, and verified by their oath or affirmation; they shall also declare on oath * * when and how the fire originated, so far as they know or believe," &c.

It appears from the evidence, that a fire occurred on the 20th day of May, 1867, by which the property insured was injured, or destroyed. On the 31st day of May, 1867, Robert Lafferty made out and delivered the "particular account" under oath, as required by the said 11th condition; by which he stated, in section 7: "That the fire originated from an explosion of gas, one of the stills communicating and burning the refinery swept every thing except a large crude oil tank." This "particular account," or as it is called in the bill of exceptions," the preliminary proofs of loss," the plaintiff gave in evidence, it having been produced by the defendant upon notice from the plaintiff for that purpose; and the plaintiff admitted, that the same had been signed and sworn to by the said Lafferty, of the firm of RLafferty & Co.

Aside from that statement, the only evidence as to the origin of the fire is the deposition of Heil; which states, that he " was there at the time the fire commenced;" using his own language, he says:" I was standing right in front of the boiler, that raised steam for the engine; the fireman fired up the boilers; just as he shut up the furnace door I saw something just like lightningstrikes the line of light ran in the office, then ran back into the receiving room, then the whole thing was on fire; the office door and the receiving room door were three feet apart; both of these doors were open, and Mr. Lafferty was himself in the office; the office did not take fire at first; it burned down afterwards; the stills in the refinery were running at the time; at the time the fire began there was no explosion at all; the fire burned about five minutes, when you could hear the explosions in the agitator and receiver; I think in about five or ten minutes after the commencement of the fire the top was blown off one receiver, the other one was cracked; there was no oil in these receivers; the heat inside caused the gas therein to expand and explode; the stills were not damaged by the fire; the condenser was burned; this was a cloudy day and no wind at all; when there is no wind the gas settles around on the ground/' &c.

On cross-examination, he said: "I first saw the flash of fire in the office, as I was standing a little from the door, and from there it ran into the main building through the door in the brick wall, and then the whole of the inside of the main building took fire. I think, if the door in the brick wall had been shut, the fire could not have got in, * but I could not get there soon enough to shut the door.1'

The first question presented for our consideration is the proper construction to be given to the exception to the risk contained in the policy, viz: "That this corporation shall not be liable to make good any loss or damage by fire, which, may happen, or lake place, occasioned, by explosions of any kind, by 'means of invasion, insurrection, riot, or civil commotion, or of any military or usurped power."

The plaintiff in his argument has attempted to limit the construction to explosions occasioned by means of invasion, insurrection, riot, or civil commotion, or any military or usurped 'power. He argues, that there is a distinction between the cause, or agent, and the means, or instrument, by which an act is performed, or a result produced that the means is not the proper alternative of the cause; and that this distinction is marked in the plain language of the exception. He says, "the only cause of fire excepted is explosion and this cause is limited by the means enumerated in the subsequent clause. The language used excepts any loss or damage by fire occasioned by explosions as the cause, and invasion, insurrection, &c, as the means. If this was not the meaning of the company, why did it after the words, 'explosion of any kind'' insert the limiting words, 'by means off Why did it not simply say, 'by explosions of any kind, invasions, insurrections, &c?" Such construction the plaintiff insists "is the grammatical one." He further argues, that this interpretation is warranted by the context, because "in the 8th condition annexed to the policy, it is provided, that the company will not be liable lor fire resulting from the explosion of a steam-boiler. Why did the company insert this exception, if it was included in the former exception, as is now claimed by the company? The explosion of a steam-boiler is included in the language of the former exception, 'explosions of any kind," and is excepted from the risk, if that language is not limited by what follows. The insertion of the 8th condition clearly indicates, that the company intended in the former exception to limit the words 'explosions of any kind," by the following clause, 'by means of invasions, &c" and as the...