Westchester Fire Ins. Co. v. Bell

• Decision Date: 21 February 1921
• Docket Number: 1825.
• Citation: 106 S.E. 186,151 Ga. 191
• Parties: WESTCHESTER FIRE INS. CO. v. BELL.
• Court: Georgia Supreme Court

106 S.E. 186

151 Ga. 191

WESTCHESTER FIRE INS. CO. v. BELL.

No. 1825.

Supreme Court of Georgia

February 21, 1921

Rehearing Denied Feb. 28, 1921.

Syllabus by the Court.

A policy issued to the owner of a described building insured him in a stated amount against all direct loss or damage by fire, except as provided in the policy, which might be sustained by the assured upon the building; it being further provided therein that the insurer should not be liable for loss caused directly or indirectly by explosion of any kind unless fire ensues, and in that event for damage by fire only. Held, that a loss by the breaking of glass in the doors and windows, and by the destruction of plastering in the insured building, caused from concussion alone produced by explosion of dynamite employed by the fire department of a city in blowing up a neighboring building to prevent a further spread of a conflagration which threatened to burn the injured building, fell within the exception stated in the policy, and the company was not liable therefor; and this is true notwithstanding the declaration in the Civ. Code 1910, § 2476, that "a loss or injury may occur from fire without the actual burning of the articles or property; as, a house blown up to stop a conflagration."

Certiorari from Court of Appeals.

Action by B. F. Bell, administrator, against the Westchester Fire Insurance Company. Judgment for plaintiff was affirmed by the Court of Appeals (24 Ga.App. 528, 101 S.E. 590), and defendant brings certiorari. Reversed. Judgment conformed to in Court of Appeals, in 106 S.E. 188.

Beck P.J., and Atkinson, J., dissenting.

King & Spalding, of Atlanta, for plaintiff in error.

McElreath & Scott, of Atlanta, for defendant in error.

FISH C.J.

Bell brought suit against the Westchester Fire Insurance Company in the municipal court of Atlanta, upon a policy of insurance issued by the defendant. The case was tried by the court without a jury, upon an agreed statement of facts; and judgment was rendered against the defendant; it was taken by certiorari to the superior court, where the judgment of the trial court was affirmed. Upon writ of error to the Court of Appeals there was an affirmance of the ruling of the superior court 24 Ga.App. 528, 101 S.E. 590. The case is here on certiorari to the Court of Appeals.

The policy was on the building known as 670 North Boulevard in the city of Atlanta. While it was in force a conflagration occurred in the city, which became so great that the fire department, in order to prevent its farther progress resorted to the use of dynamite to blow up the buildings in the path of the fire, the purpose being to thus stop the progress of the conflagration, and to prevent its extending beyond the buildings thus dynamited. A building approximately 150 feet distant from No. 670 was for such purpose dynamited but no part thereof was burned, but the concussion of the air resulting from the explosion caused by the dynamite broke many glasses in the doors and windows and destroyed plastering in No. 670, the insured building, which was not ignited by fire. Due proof of such loss was made by the plaintiff. The question whether the insurance company would have been liable under the policy, in view of the general law of insurance, or under the Civil Code 1910, § 2476, providing that:

"A loss or injury may occur from fire without the actual burning of the article or property; as, a house blown up to stop a conflagration"

--had there been no excepting clause in the policy, is of course not here for decision. The only question presented for determination is whether or not the loss claimed is covered by the policy in suit, or excepted therefrom.

It is clear to us that the loss was not covered by the policy, but fell squarely within the exception set out therein. The policy insured "against all direct loss or damage by fire, except as provided in the policy, which might be sustained by the assured upon" the building known as No 670, etc. The exception is that the company "shall not be liable for loss caused directly or indirectly by invasion, insurrection, riot, civil war or commotion, or military or usurped power, or by order of any civil authority; or by theft; or by neglect of the insured to use all reasonable means to save and preserve the property at and after a fire or when the property is endangered by fire in neighboring premises; or (unless fire ensues, and, in that event, for damage by fire only) by explosion of any kind, or lightning, but liability for direct damage by lightning may be assumed by specific agreement hereon." The exception expressly states that the company shall not be liable for loss caused directly or indirectly by explosion of any kind, unless fire ensues, and, in that event, for damage by fire only. This language is explicit and unequivocal. The use of the expression "explosion of any kind" indicates that explosions of more than one kind were contemplated; and the obvious meaning of the exception is that the company shall not be liable for loss caused directly or indirectly by any kind of an explosion whatsoever, unless fire ensues from the explosion, and in that event the company shall be liable for damages caused by the fire only, and not by the explosion. The provision of our Civil Code, § 2476, which, in effect, declares that a house blown up to stop a conflagration may be considered a loss by fire, if applicable to the facts of this case, cannot be considered a part of the contract of insurance under the policy here involved, for the conclusive reason that the language embodied in the exception in the...