Van Winkle v. Am. Steam-Boiler Ins. Co.

CourtUnited States State Supreme Court (New Jersey)
Citation52 N.J.L. 240,19 A. 472
Decision Date25 February 1890

(Syllabus by the Court.)

Eugene Stevenson, for plaintiff. William Brinkerhoff, for defendant.

BEASLEY, C. J. This case stands before the court on a demurrer to the declaration. The facts constituting a summary of the plaintiff's cause of action, as presented in this pleading, are these: That he is the owner of a certain mill in Paterson, near to which is a mill owned by the Ivanhoe Paper Company, in which there was a large steam-boiler, which was so situated that, if it exploded, the building of the plaintiff would be inevitably damaged; that the defendant, the American Steam-Boiler Insurance Company, "represented and stated" to the Ivanhoe Paper Company that it kept in its employ skilled engineers who were expert in the examination and testing of steam-boilers, and that in case the paper company insured in the company of the defendant it would have said boiler examined and tested from time to time, and would report the result of such tests and examinations; and that thereupon the Ivanhoe Paper Company took a policy from the defendant, against certain specified damages that should be occasioned by the explosion or rupture of said steam-boiler. But it is not perceived how the declarations and representations not expressed can affect the questions to be decided, for certainly they have nothing to do in the constitution of the conventional status between the defendant and the Ivanhoe Paper-Mill Company. These statements were all made antecedently to the contract for insurance, which was in writing, they are inconsistent with its provisions, and consequently were annulled by its execution, A copy of the policy of insurance here referred to was annexed to the declaration, and is made part of it, in accordance with the practice act. On reference to it, it appears that, so far from the defendant's having undertaken the obligation of making the examinations and tests described in the before-mentioned representations, there is simply a stipulation to the effect that it should have the right to make inspections if it pleased so to do. The principal clause touching this subject is as follows, viz.: "Prevention of accidents by explosion being the primary object of this company, it is hereby agreed that the inspector of this company shall, at all reasonable times, have access to said boiler or boilers, and the machinery connected therewith, and every and all facilities be offered to said inspector, when this company shall so desire, for the purpose of making an examination of said boiler or boilers or machinery; and should such inspector, upon said examination, discover any defect, affecting the safety of said boiler or boilers or machinery, he shall notify the assured; or should the assured discover any defect, or be notified by any person having any interest therein of any defect or source of danger to said boiler or boilers or machinery, and upon such defect being brought to the knowledge of the assured, or of his agent, the said boiler or boilers or machinery so affected shall cease to be worked until such defect shall be corrected or repaired by the assured to the entire satisfaction and approval of the inspector of this company, and upon a failure so to do this policy shall become null and void." There is likewise a stipulation that, in case of the cancellation of the policy, the company might retain 30 per cent. of the premium "for the charges of inspection," and another to the effect, in its own language, that the policy should be void "if the load on the safety-valve shall be exceeded as approved by the inspector of this company, according to the inspector's certificate issued to the assured after each inspection."

It is plain, from these references to this policy, that the defendant was in no wise obligated by its contract to make any inspection whatever of this piece of machinery. It acquired the right to do so by its inspector when it should so desire, but there was nothing in the agreement compelling it to perform such office. And, consequently, if the insurance company had altogether refrained from making an inspection of this boiler, or had refused so to do, it would seem clear that it would have incurred no responsibility either to the assured or to the plaintiff for the disaster that has occurred. In such a situation it would have owed to the former no duty by force of contract, and to the latter none by force of the law. But this is not the posture of affairs existing at the time of this accident. The declaration avers, and the fact of course is admitted by the demurrer, that the defendant, in the exercise of its volition, made repeated inspections of the boiler in question, and furnished the required certificates for the guidance of the engineer of the assured. No one can doubt that by such a course of action a duty in favor of the assured was imposed on the defendant, by the operation of the contract itself, to act with ordinary skill and care, both with respect to its inspection and its certificate. It is deemed that there is no room for doubt that, for the proximate damage occasioned by the absence of such care and skill, the defendant became answerable to the assured per contractu as it had stipulated for such care and skill by the terms of its contract, read in the light of legal rules. But this is not the aspect of the transaction now presented for scrutiny. It is obvious that the plaintiff cannot rest his right to sue on the contract existing between the defendant and the Ivanhoe Paper-Mill Company. To that engagement he is an absolute stranger, and there is no stipulation in it that was designed for his particular benefit. Indeed, it is not perceived that this policy of insurance has any effect in this case, except inasmuch as it may explain and characterize the conduct of the defendant with respect to this steam-boiler. Its connection with it, as it is exhibited in the record before the court, forms the pith of the present inquiry. This is plain upon the surface of things. The boiler, unless properly handled, was a dangerous thing, and, according to the legal rule established by the English courts, the proprietor of such an instrument is deemed an indemnifier for all losses, sufficiently proximate, occasioned by its use. This doctrine is thus stated by Mr. Horace Smith in his Scientific Treatise on the Law of Negligence, (page 8.) After adverting to the contract which the law raises between the common carrier and those who in trust their goods to him in the way of his business, this author proceeds: "With regard to such contracts, express or implied, no question of negligence arises; and the same holds with respect to cases which may be said to be in the nature of assurance, viz., where a person brings upon his land some dangerous thing, such as fire or water, or a dangerous animal; for he is bound, as we shall see. to keep it at home at his peril. In all these classes of cases so me thing more than 'care,' however diligent, is demanded, viz., absolute indemnity." The American decisions maintain a less stringent doctrine. Where the dangerous thing is not in its nature and under the circumstances a nuisance per se, the maintainer of it is not, in any sense, an insurer against the loss that it may accidentally cause. He is responsible only for negligence or want of skill in its management or use. Nevertheless as the thing employed is threatful of peril to others, and as he is using such thing for his private benefit, it has been properly established that the proprietor must...

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    ...Among the cases cited as contra the continued authority of Clyne v. Helmes is 37 A.2d 210Van Winkle v. American Steam Boiler Company, 52 N.J.L. 240, 19 A. 472, 475. That case does not come at all within the field of landlord and tenant but it does state two legal principles which have a bea......
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    ...or economically harmed as a direct result of the inspectors misfeasance. Van Winkle v. American Steam Boiler Insurance Company, 52 N.J.L. 240, 19 A. 472 (1890) (inspector held liable to plaintiff whose adjacent property was damaged by an explosion of a boiler which had been inspected by the......
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    ...had made repeated inspections of the boiler and had issued the mentioned certificates for the guidance of the insured's engineer. In Van Winkle, the court emphasized that the case concerned the management of a highly dangerous instrumentality, an activity for which courts showed special con......
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