The Independent Mutual Insurance Company v. Agnew

• Decision Date: 01 January 1859
• Citation: 34 Pa. 96
• Parties: The Independent Mutual Insurance Company versus Agnew.
• Court: Pennsylvania Supreme Court

34 Pa. 96

The Independent Mutual Insurance Company versus Agnew.

Supreme Court of Pennsylvania.

ERROR to the District Court of Philadelphia.^*

COPYRIGHT MATERIAL OMITTED

Bullitt, for the plaintiffs in error.—It is well settled that the proximate, not the remote cause of the loss, is to be looked to: Green v. Elmslie, Peake N. P. 212; Livie v. Jansen, 12 East 648; Walker v. Maitland, 5 B. & Ald. 174; Busk v. Insurance Company, 2 Id. 73; Waters v. Insurance Company, 11 Pet. 222; Insurance Company v. Coulter, 3 Id. 222; City Fire Assurance Company v. Corlies, 21 Wend. 369; Hillier v. Insurance Company, 3 Barr 473; Austin v. Drew, 6 Taunt. 436. If any other rule is adopted, there can be no certainty as to what is or is not covered by the policy: Levy v. Baillie, 7 Bingh. 349; Angell on Insurance 279. In Lanigen v. Insurance Company, at Nisi Prius, tried January 23d 1857, Chief Justice LOWRIE charged the jury as follows: "The plaintiff cannot recover against the defendants for goods that may have been stolen from the shop after the fire originated, and after the shop was broken open in order to extinguish the fire, and during the occupation that was consequent upon the fire, for the defendants have insured against the fire only, and the damage that may be done by it, and by the water used in extinguishing it, and so as to prevent their entire consumption."

Cuyler, for the defendant in error.—The policy is one of indemnity, and is to be liberally construed for the protection of the insured: Dolby v. India Assurance Company, 28 Eng. Law & Eq. R. 312; Grant v. Lexington Insurance Company, 5 Md. 23; 1 Phillips on Insurance 43; Mackie v. Pleasants, 2 Binn. 373. The loss incurred was the immediate and proximate result of the fire, and arose from the doing of an act required by the policy for the protection of the insurer, and which actually resulted in his benefit: Case v. Hartford Fire Insurance Company, 13 Ill. 676; Hillier v. Allegheny Mutual Insurance Company, 3 Barr 471; Angell on Insurance, §§ 115, 132; 1 Phillips on Insurance 690; Higginson v. Pomeroy, 11 Mass. 11; Peters v. Warren Insurance Company, 14 Pet. 108; Sherwood v. General Mutual Insurance Company, 1 Blatch. 251; Wells v. Boston Insurance Company, 6 Pick. 132.

The opinion of the court was delivered by READ, J.

The real question in this case is, whether goods stolen or lost at a fire, are within a policy of insurance against fire. A fire policy has been held to cover losses, by the removal of the goods from a building actually on fire, although the goods may not have been burnt, but in fact were injured by water, or by the breakage in the act of saving them from fire. Either goods insured are to be left in a building on fire, to share its fate, or they are to be removed at the risk of the insurer, who stipulates, that in case of fire or of loss or damage thereby, it shall be the duty of the insured to use their best endeavors for saving and preserving the property, and that there shall be no abandonment to the insurers of the subject insured.

The only method of saving goods in a burning store is by removal. If the insured were to lock up his store, and refuse admission to the fire department, and his stock on hand was burned up, it is clear that he would have no claim under his policy, he having deliberately violated a fundamental condition of it. His only alternative, then, is to employ the usual means to remove his goods to a place of safety, and if he does so carefully, prudently, and in good faith, he certainly should not suffer losses necessarily attendant upon a removal at such a time, without being indemnified...