Wheeler v. Phenix Ins. Co. of Brooklyn

• Decision Date: 03 November 1911
• Citation: 96 N.E. 452,203 N.Y. 283
• Parties: WHEELER et al. v. PHENIX INS. CO. OF BROOKLYN.
• Court: New York Court of Appeals Court of Appeals

203 N.Y. 283

96 N.E. 452

WHEELER et al.

v.PHENIX INS. CO. OF BROOKLYN.

Court of Appeals of New York.

Nov. 3, 1911.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Albert J. Wheeler, individually and as executor of Mary J. Wheeler, deceased, and others, against the Phenix Insurance Company of Brooklyn. From a judgment of the Appellate Division (136 App. Div. 909,120 N. Y. Supp. 1151) affirming a judgment for defendant, plaintiffs appeal. Reversed.Charles Diebold, Jr., for appellants.

E. J. Nathan, for respondent.

HAIGHT, J.

This action was brought to recover the amount of a policy of insurance issued by the defendant to the plaintiffs, insuring them against direct loss or damage by fire to the Ontario elevator situated on the east side of the Evans ship canal in the city of Buffalo.

The complaint alleges that the property was wholly destroyed by fire on the 30th day of October, 1904, and that the plaintiffs sustained a loss of $103,000, with an aggregate insurance of $94,750, and demands judgment for the amount of the policy. The answer admits the issuance of the policy and denies the other material allegations of the complaint, and alleges as a defense: First, that the damage was caused by an explosion for which the defendant, under its policy, is not liable; and, second, that the elevator fell, not as a result of fire.

The Ontario elevator was a wooden structure built in the year 1889, the main building being 109 feet front and 83 feet deep, having two marine towers, one on the north and the other on the south end thereof. The bins in the building were constructed of hemlock plank laid flatwise to the height of 52 feet, and on top thereof there was a double floor, over which there was a vast open space of irregular shape because of the gables in the roof, about 78 feet in height, in which was located the machinery by which the grain was hoisted to the machinery floor and then distributed by means of spouts to the different bins below. In the northeast corner of the machinery floor was a matched board closet, planed on one side and called a locker or cupboard, in which the workmen kept their clothes, supplies for the machinery, lamps, and a quantity of beef suet. The building was used for the elevating and storage of grain that came from vessels down the lakes. On the arrival of a vessel loaded with grain the leg of the marine tower containing an endless belt on which were fastened buckets at regular intervals would be lowered into the hold of the vessel, and then by causing the belt to revolve the buckets would fill with grain and elevate the same to the tower above, where it would be deposited in large hoppers, which would convey it to the machinery floor, where it would be distributed by means of spouts as before stated. The engines and boiler which furnished the power by which the elevator was operated were located in a brick building near by, but in no wise connected with the elevator building. In withdrawing grain from the elevator for the purpose of loading cars or canal boats or other means of transportation the grain is run through a spount in the bottom of each bin into pits or conveyors on the ground floor and is then taken by an elevator similar to the marine leg, where it is conveyed to the machinery floor near the peak of the roof, where it is weighed and then conveyed to its destination by means of spouts, the same as when it was elevated originally from the vessel. In elevating the grain from a vessel for storage, or in elevating it from the bins to be withdrawn from storage, a great amount of dust is created and brought into the machinery room above the top of the bins.

On Friday night preceding the destruction of the elevator the steamer Penobscot arrived with a cargo of over 100,000 bushels of barley, which was elevated in the manner already disclosed, which contained great quantities of dust which was deposited on the floor and disseminated into the atmosphere of the machinery room. The work ceased about 2 o'clock Saturday morning, but during Saturday the elevator was in operation transferring grain from different bins and in loading cars. After the work ceased on Saturday night the watchman made his rounds regularly until 4 o'clock in the morning, and when he left all the windows of the machinery floor were closed and there was then no light or fire in the building. A few minutes after 11 o'clock in the forenoon of Sunday a great explosion occurred, in which the building was wrecked, and at that time it contained 297,000 bushels of grain.

The theory of the plaintiffs is to the effect that spontaneouscombustion occurred among the material contained in the locker, so called, which created a fire that burned over and charred the boards out of which the closet was constructed, and that this fire ignited the dust that was contained in the machinery room and caused the explosion which wrecked the building.

Upon the trial the court directed a nonsuit at the close of the plaintiff's evidence upon the ground that the defendant was not liable under its policy even though the explosion was caused by fire, under the authority of Hustace v. Phenix Ins. Co. of Brooklyn, 175 N. Y. 292, 67 N. E. 592,62 L. R. A. 651, and Briggs v. North American & M. Ins. Co., 53 N. Y. 446. He, however, held that the evidence tending to show that the explosion was caused by fire was sufficient to make that a question of fact for the jury.

[1] The policy of insurance upon which this action is based undertook to insure the plaintiffs ‘against all direct loss or damage by fire except as hereinafter provided.’ Under the provision thereafter provided as the exception is the following: ‘This 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 the damage by fire only) by explosion of any kind .’ Webster defines ‘ensues' as meaning ‘to follow or come afterwards; to follow as a consequence or in chronological succession, to result.’ The provision, therefore, embraced in the exception ‘unless fire ensues' should be read as meaning ‘unless fire follows or comes after or as a consequence of the explosion.’ This being the meaning of the provision, it is apparent that a fire, which precedes and causes the explosion, is not embraced in the exception contained in the policy from the provision which insures against all direct loss or damage by fire. Nor do we think that the words ‘by explosion of any kind’ were intended to refer to the agency which rpoduced the explosion but have reference to the different kinds of material that explode, such as powder, dynamite, gas, dust, etc. Had the Legislature, in adopting the standard form of policy, intended to have included explosions caused by fire with explosions...