Wasserman v. Caledonian-American Ins. Co.

• Decision Date: 01 December 1950
• Citation: 95 N.E.2d 547,326 Mass. 518
• Parties: WASSERMAN v. CALEDONIAN-AMERICAN INS. CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

326 Mass. 518

95 N.E.2d 547

WASSERMAN v. CALEDONIAN-AMERICAN INS. CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

December 1, 1950

Argued Nov. 8 1950.

B. P. Rome, Boston for plaintiff.

C. W. O'Brien Boston, for defendants.

Before QUA, C. J and LUMMUS, RONAN, WILKINS and COUNIHAN, JJ. WILKINS, Justice.

The holder of standard form fire insurance policies, G.L. (Ter.Ed.) c. 175 § 99, as amended, sues for damage to a heating system and adjacent premises. The judge found for the defendants, and made subsidiary findings. The premises were heated by an oil burner installed in the cellar. On the morning of January 3, 1947, it was discovered that the burner was operating, sending a flame in the usual way into the boiler, which was cherry red and emitting sparks. It was later learned that there was no water in the boiler. The oil burner functioned normally and as intended except for the lack of water. The excessive heat cracked the boiler and damaged the ceiling, but no sparks or fire came in contact with the ceiling.

The plaintiff took no exceptions to rulings at the trial. At the close of the evidence she presented requests for rulings, three of which the judge denied in the absence of counsel. The plaintiff did not except within three days after notice as required by Rule 72 of the Superior Court (1932). The case is here on the following questions of law by report of the judge: '1. On the facts hereinafter set forth, as a matter of law, do I have the power to report this matter to the Supreme Judicial Court? 2. If I do have the power * * * was I obliged as a matter of law to find for the plaintiff?'

The following requests were denied as 'inapplicable in view of the facts hereinbefore found'; '2. The evidence does not warrant a finding for the defendants.' '5. If a fire escapes from its natural location it becomes a fire covered by the Massachusetts standard policy and the insured is entitled to recover for damage sustained. 6. If a 'friendly' fire becomes destructive by reason of a change of conditions, it becomes a fire covered by the Massachusetts standard fire policy.'

By G.L. (Ter.Ed.) c. 231, § 111, 'A justice of * * * the superior * * * court * * * after a finding of the facts by the court, may report the case for determination by the full court. * * *' This statutory authorization extends only to the reporting of questions of law. There must have been a request or a ruling on a point sought to be reported. Scaccia v. Boston Elevated Railway, 308 Mass. 310, 314, 32 N.E.2d 253, Id., 317 Mass. 245, 251, 57 N.E.2d 761; City of Quincy v. Brooks-Skinner, Inc., 325 Mass. 406, 410, 91 N.E.2d 206. This is not a report of the denial of the second request which asked a ruling upon all the evidence, and, besides, there is no evidence in the report. This is not expressly a report of the rulings on the fifth and sixth requests. Those requests, however, were denied only because deemed inapplicable on the facts found. As the result will not be affected, lest the report of the substantive question become utterly nugatory, we treat it as bringing here the question whether a finding for the plaintiff was required because, contrary to the rulings, the fifth and sixth requests were not rendered immaterial by the findings.

The report contains no recital that the ultimate finding for the defendants was based solely upon the subsidiary findings. Compare Winslow Bros. & Smith Co. v. Hillsborough Mills, 319 Mass. 137, 141. The general finding imports all subsidiary findings necessary to that conclusion and not inconsistent with special findings or rulings of law. Manzi v. Carlson, 278 Mass. 267, 273, 180 N.E. 134; Weathers v. Jarvis, 294 Mass. 227, 229, 230, 200 N.E. 886; Maher v. Haycock, 301 Mass. 594, 595, 596, 18 N.E.2d 348.

In Scripture v Lowell Mutual Fire Ins. Co., 10 Cush. 356, 359-360, 64 Mass. 356, it was said, 'If, in Austin v. Drew , the fire had been where it ought not to be, if, even with careless management, it had burned the building, and notwithstanding it was fire maintained only for the purpose of manufacture, * * * the insurers would have been held to be liable for the loss. This, therefore, and this only * * * is decided by the case of Austin v. Drew, namely, that where a chemist, artisan, or manufacturer, employs fire as a chemical agent, or as an instrument of art or fabrication, and the article, which is thus purposely subjected to the action of fire, is damaged in the process by the unskilfulness of the operator, and his mismanagement of heat as a agent or instrument of manufacture, that is not a loss within a fire policy. This we apprehend is good sense and sound law.' In Way v. Abington Mutual Fire Ins. Co., 166 Mass. 67, 43 N.E. 1032, 32 L.R.A. 608, the plaintiff recovered for damage to his house by smoke from a chimney fire ignited in soot by a fire lighted in a stove connecting with the chimney. At pages 74-75, of 166 Mass., at page 1033 of 43 N.E., it was said, 'We are inclined to the opinion that a distinction should be made between a fire intentionally lighted and maintained for a useful purpose in connection with the occupation of a building, and a fire which starts from such a fire, without human agency, in a place where fires are never lighted nor maintained, although such ignition may naturally be expected to occur occasionally, as an incident to the maintenance of necessary fires, and although the place where it occurs is constructed with a view to prevent damage from such ignition. A fire in a chimney should be considered rather a hostile fire, than a friendly fire; and as such, if it causes damage, it is within the provisions of ordinary contracts of fire insurance.' In Ellis v. Norwich Union Fire Ins. Society, Ltd., 259 Mass. 450, 156 N.E. 696, the plaintiff left a covered pot over a lighted burner on a gas stove until the pot and its contents were burned causing smoke damage to the insured premises. There was expert testimony that there probably would be a flame from the gases as they emerged from the pot, 'which flame * * * would be separate and apart from the flame of the gas stove.' In holding that there was error...