Solomon v. U.S. Fire Ins. Co. of N.Y., 7181.

• Decision Date: 10 March 1933
• Docket Number: No. 7181.,7181.
• Citation: 165 A. 214
• Parties: SOLOMON et al. v. UNITED STATES FIRE INS. CO. OF NEW YORK.
• Court: Rhode Island Supreme Court

165 A. 214

SOLOMON et al.

v. UNITED STATES FIRE INS. CO. OF NEW YORK.^*

No. 7181.

Supreme Court of Rhode Island.

March 10, 1933.

Exceptions from Superior Court, Washington County; G. Frederick Frost, Judge.

Consolidated actions by Lewis Solomon and others against the United States Fire Insurance Company of New York. Defendant's motion for a directed verdict was granted, and plaintiffs bring exceptions.

Exceptions overruled, and case remitted, with direction.

John P. Reagan and P. Henry Quinn, both of Providence, for plaintiffs.

Sherwood & Clifford and Sidney Clifford, all of Providence, for defendant.

STEARNS, Chief Justice.

The above-entitled case is a consolidated case resulting from the consolidation for trial by stipulation of parties and by the order of the superior court of seventeen actions. These cases are actions on lire insurance policies of standard form to recover for damage by smoke and soot to the plaintiffs' building and the contents thereof. Each policy insured plaintiffs against all direct loss or damage by fire. Attached to and a part of each policy was a permit allowing the insured to use an oil-burning system in the premises in consideration of the compliance by him with certain warranties with respect to the quality and storage of the oil used.

The facts are undisputed. Plaintiffs owned and conducted a department store in Westerly. The building was heated by an oil-burning furnace which was controlled by a thermostat located on a wall of the first floor of the store near the entrance. About 7 o'clock on the morning of December 17, 1927, smoke was observed issuing from the windows of the store. The fire alarm was sounded, and the fire department and plaintiffs soon arrived at the store. The building was found to be filled with smoke to such an extent that it was impossible to remain in the store. At plaintiffs' request, no water was turned on by the firemen, as it was thought that the smoke came from the furnace in the basement of the building. The door to the basement in the rear alleyway was forced open, and several firemen accompanied by plaintiffs' son entered the basement. As they walked into the smoke-filled basement, they saw, through a window in a partition wall, that flame was issuing from the rear of the furnace. Unable to remain because of the dense smoke, they returned to the street in front of the store. The chief of the lire department testified that before they left the basement the flame flared up about three times and then ceased, and there was darkness. In the meantime the man who a few days before had installed the thermostat arrived on the scene, rushed into the store, pulled the thermostat from the wall, and thereby shut off the oil supply of the furnace. The fire at once went out, the doors and windows were then opened, and the smoke and soot was blown out of the building.

An examination of the furnace disclosed the fact that the front door was open, and that more than half of the smoke pipe which connected the rear of the furnace with the chimney had fallen away from the furnace on to the floor while the rest of the smoke pipe was still suspended from the ceiling. There was no ignition of the building or its contents. All the damage was caused by smoke and soot.

At the conclusion of plaintiffs' evidence defendant rested its case and moved for the direction of a verdict. This motion was granted. The case is here on plaintiffs' exceptions to the refusal to submit the case to the jury and to the direction of a verdict for defendant.

The fundamental question is whether plaintiffs' damage was caused by smoke and soot from what is known as a "hostile fire" as distinguished from a "friendly fire." Defendant admits its liability for damage caused by the former, but not by the latter. Plaintiffs maintain that, since the flames escaped from the limits within which they were intended to be confined, the fire was hostile. Defendant contends that, although the flames escaped from their normal limits, nevertheless nothing was ignited or burned Outside of the furnace which caused the plaintiffs' damage, and that such damage was caused by smoke and soot from a fire which was not hostile but friendly.

Certain facts are to be noted. There was only one fire which was kept burning in the place where it was intended to be by a continuous supply of fuel which was constantly running into the furnace. The combustion of the oil was in the furnace, and the flame, smoke, and soot were the natural results of such combustion. Neither the building nor its contents were ignited. The flame from the broken smoke pipe did not originate outside the furnace. There is no evidence that such outside flame produced any additional or separate smoke or soot. When the automatic supply of oil was discontinued, the fire in the furnace ceased, and the production of smoke and soot came to an end. The fire consumed only what was intended to be consumed. It was extinguished merely by the discontinuance of the supply of fuel.

The language of the standard policy is not the language of the insurer; it is prescribed by statute, and hence should not be extended by construction. All direct loss or damage by fire is not covered by this policy. Chapter 258, Gen. Laws 1923, "Of Insurance Policies," makes many exceptions to the direct losses which otherwise would be recoverable; for example, one exception is that the insurer shall not be liable for loss caused directly or indirectly by explosion of any kind, unless fire ensues and in that event for the damage by fire only.

In the Instant case the door of the furnace was found to be open and part of the lining...