Way v. Abington Mut. Fire Ins. Co.

• Decision Date: 19 May 1896
• Citation: 43 N.E. 1032,166 Mass. 67
• Parties: WAY v. ABINGTON MUTUAL FIRE INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

166 Mass. 67

43 N.E. 1032

WAY v. ABINGTON MUTUAL FIRE INS. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 19, 1896

The plaintiff put in evidence the report of an auditor to whom the cause had been referred, who found, among other things, as follows: "The damage was caused as follows: About 5 p.m. on September 25, 1891, the plaintiff's foreman emptied into the stove in the front room on the said first floor the contents of a waste basket consisting of waste paper, and lighted the same, and in a few moments it was apparently all consumed. The foreman thereupon closed the drafts of the stove, and left the store locked up at about 6 p.m. At 7:51 p.m. of the same evening an alarm of fire was given, by reason of smoke being seen issuing from under the front door of the said building, and through the keyhole of the same door. The door was burst open, and the said two rooms and basement were found to be full of a dense smoke, as also the other and upper rooms of the building. The smoke was very thick, and apparently came down the chimney into the said front room. An examination of the flue of the chimney into which the pipe of the stove in the front room entered showed that the soot in that flue had been recently on fire, and that the flue was choked up by nearly a bushel of lime and scales of burnt soot. I also find that soot in a chimney will burn a long time without any vent. There was a large amount of burnt soot in the flue below the obstruction above named; and I find that the burning waste paper above named ignited the soot in said flue, and the soot thus burning caused the lining of the flue and the scales of soot to fall and choke up the said flue at a bend therein, about on the level of the second floor, and the smoke caused by the soot, continuing to burn in said flue at a point below said obstruction, came out, and into the plaintiff's rooms, and caused the damage to the plaintiff's goods There was no fire in said building other than in the said stove and said chimney, and all of said smoke came from said chimney, and was caused as above stated; and the said soot in the chimney was accidentally ignited by the burning waste paper placed in the stove in the front room as aforesaid, and such ignition of the soot was not the intended--not the probable--result of so burning such paper, and said paper was placed in said stove and ignited for the purposes, and as a part of the plaintiff's business of manufacturing cigars."

COUNSEL

Alfred Hemenway and William H. Preble, for plaintiff.

L. & Dabney, for defendant.

OPINION

KNOWLTON J.

It is conceded by the defendant that it is liable for damage caused by smoke, to the same extent as if the damage had been caused directly by the fire which produced the smoke. The question before us is whether the fire in the chimney was within the contract of insurance made by the defendant. The policy purports to cover all loss or damage by fire, but the defendant contends that in all such contracts there is an implied exception of such fires as this, from which the plaintiff suffered loss. The facts are not in dispute, and if the defendant's witness had been permitted to testify as an expert, or if the jury had used...