Westchester Fire Ins. Co. v. Chester-Cambridge B. & T. Co.

• Decision Date: 22 July 1937
• Docket Number: No. 6217.,6217.
• Citation: 91 F.2d 609
• Court: U.S. Court of Appeals — Third Circuit
• Parties: WESTCHESTER FIRE INS. CO. OF NEW YORK v. CHESTER-CAMBRIDGE BANK & TRUST CO.

91 F.2d 609 (1937)

WESTCHESTER FIRE INS. CO. OF NEW YORK v. CHESTER-CAMBRIDGE BANK & TRUST CO.

No. 6217.

Circuit Court of Appeals, Third Circuit.

July 22, 1937.

Horace M. Schell, of Philadelphia, Pa., for appellant.

J. H. Ward Hinkson, of Chester, Pa., for appellee.

Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.

DAVIS, Circuit Judge.

This is an appeal from a judgment for the plaintiff entered on a directed verdict after consideration of points of law which had been reserved. The judgment is for $3,088.22, the amount agreed by the parties to be the extent of the damages suffered by the plaintiff for which defendant is liable, if it is liable at all.

The cause of action arose out of the following undisputed facts: The plaintiff is the holder of a mortgage on a certain piece of land with buildings erected thereon. The buildings were insured by the defendant. They are described in the policy as a "three story brick building with roof, and additions thereto, adjoining and communicating. * * *" The additions consist of two one story buildings in the rear of the main building which were used as a dance hall and kitchen respectively. The policy contains a mortgagee clause which entitled the plaintiff to recover thereon. It also contains the following provisions:

"Unless otherwise provided by agreement in writing added hereto, this Company shall not be liable for loss or damage occurring, * * *

"(g) by explosion or lightning, unless fire ensue, and in that event for loss or damage by fire only. * * *

"Fall of Building.

"If a building or any material part thereof fall, except as a result of fire, all insurance by this policy on such building or its contents shall immediately cease."

Due to an explosion or explosions of incendiary origin the additions were destroyed. A fire immediately ensued, causing damage to the main building which had not fallen as a result of the explosion. The record does not disclose the name of the person or persons responsible for this loss, but it is admitted that the plaintiff was not in any way implicated.

The plaintiff brought this suit to recover for the damage which resulted from the fire to the main building, but not for the damage to the additions caused by the explosion.

To escape liability, the defendant relies upon the provisions of the policy headed "Fall of Building," and contends that all liability ceased when the additions fell as a result of the explosion. It says that to allow recovery for the damage to the main building resulting from the fire would necessarily imply that the contract was severable.

But this does not necessarily follow. The loss here was covered by the provision relieving the insurer from loss occurring "by explosion or lightning, unless fire ensue," and in that event it was liable for loss caused by fire only. There would be no question about the liability for the loss of the insurance company in this case, were it not for the provision relieving the company...