American Towing Co. v. German Fire Insurance

Alvey, C. J.,

delivered the opinion of the Court.

This was an action on a policy of insurance-against loss by fire, issued by the defendant to the plaintiff, on the 3rd day of September, 1887, for the period of one year, and which was continued by renewal for a second year. By the terms of the policy the defendant, in consideration of $25 paid, caused the plaintiff to be assured to the amount of $2,500 on the steam-tug “Samson,” her hull, apparel, machinery, boiler, engine, fixtures and all appurtenances of every description, (with privilege to use the Chesapeake bay and its tributaries,) against all loss or damage to the same by fire, originating in any cause except invasion, foreign enemies, civil commotions, riots, of any military or usurped power whatever, for and during the term of one year, &c. And by another clause in the policy, it is provided that “in case steam power is used in and about the property insured, and the boiler should burst, or any property insured is struck by lightning, or explosion occurs, this company is not liable, unless fire ensues, and then for the loss or damage by fire only.”

There was a second policy held by the plaintiff upon the tug, issued by the Rochester German Insurance Com *31 pany, for $1,500, making the total amount of insurance $4,000; and hoth policies were running at the time of the occurrence of the fire, in August, 1889; and hoth companies being sued, the cases were, by agreement, tried together, and the amount of damage awarded by the verdict was duly apportioned, according to the terms of the policies.

It appears that the steamer “'Samson” was a large iron ocean tug, with wooden deck and -house, valued at about $25,000. In August, 1889, while lying at a wharf in Georgetown, D. G., a fire occurred, whereby considerable injury was done to the wood work of the vessel, and the interior of the boiler was seriously damaged. According to the testimony on the part of the plaintiff, the total cost of repair of the damage occasioned by the fire was $3,392.86. Of this amount, the cost of repair of all the damage tmtside of the boiler, was about $1,200, and the balance of the total cost of repair was-for the necessary repair of the inside of the holler. How the fire occurred seems to be involved in something Af a mystery. The fire occurred at night; and, according to the testimony of the engineer on.the tug, the fire in the furnace was banked, and the boiler well supplied with water at the time he retired for sleep about midnight of the 21st of August; though when the fire was discovered, about 4 o’clock of the morning of the 22nd of August, the boiler was entirely without water, and was very hot. Several expert witnesses were examined at the trial, who had.examined the boiler, and they gave it as their unqualified opinion, that, from all the apparent indications, the injury to the interior of the boiler was caused by the fire in the furnace in contact with the boiler, the latter being without water to protect it; “that the inside of the boiler was injured •entirely by being overheated, occasioned by the absence of water necessary to protect it.” The defendant, by *32 its duly authorised adjuster, offered to pay for all damage done by the fire outside of the furnace, but refused to pay for the injury done to the interior of the boiler, by the action of fire in the furnace, insisting that such injury was not embraced within the risk insured against. Eor all the injury done outside the boiler, the jury, under the instructions of the Court, awarded damages to the plaintiff, but not for the injury done to the interior of the boiler. And the only question on this appeal is, whether the Court was right, in its instruction to the jury, in holding chat the injury to the interior of the boiler caused by the fire in the furnace, was not a damage contemplated by the parties to the policy.

The Court instructed the jury, upon request of the plaintiff, that the latter was entitled to recover, although the jury might find that the fire was caused by or was the result of the negligence or carelessness of the agents of the plaintiff; and that, in estimating the amount of loss, the jury were not restricted to the amount claimed by the plaintiff in the proofs of loss furnished to the defendant; nor to the amounts mentioned in the report of certain referees shown in evidence. And by the fifth prayer of the plaintiff, the jury were instructed .that they could award to the plaintiff such a sum not exceeding $4,000, as they might find the plaintiff sustained, because of the injury or damage to the tug Samson by fire, with interest, &c.; and if they should find any such sum, they should find a verdict for five-eighths of said sum against the defendant, and a verdict for three-eighths of said sum against the Rochester Fire Insurance Company. This latter instruction was given in connection with an instruction granted at the instance of the defendant, to the effect, that if the jury should find from the evidence-that the damage to the interior of the boiler of the steam-tug was occasioned by the overheating of the boiler from the furnace fires, owing to the absence of *33 water in the boiler, and was not the result of any fire ■outside of said furnace, then such damage was not the result of such fire as was contemplated by the parties under the policy of insurance, as one of the perils insured against, and that the plaintiff was not entitled to recover for such damage.

The terms of the policy in this case are such as are ordinarily employed in fire policies on steam vessels, where the risk is taken on the hull and all the machinery and ajjpurtenances, of the vessel. And it is conceded that for any injury done by fire to any part of the vessel, ■or her machinery, whether to the boiler or any other part, if the injury was done by ignition or heat generated beyond the furnace, where .the fire was intended to burn, the insurance company would be liable. But the subject of the insurance here necessarily excepts the operation of fire to a certain extent. The subject of the policy is a steam-tug, her boiler and other machinery. Of necessity, fire was to be maintained in the furnace, ■and in contact with the boiler, as means to generate the motive power by which the vessel could be propelled. The burning or warping the bars of the grate in the furnace, though produced by the action of fire, could hardly be supposed to be within the scope of the risk insured against, however general the terms of the policy. And if that be true of the furnace, it is difficult to perceive why it is not equally true of such parts of the boiler as are brought in contact with the fire in the furnace, or the heat evolved therefrom. The fire, while in the furnace, was in its proper place, and where it was intended to be; and it was placed there to act upon the boiler, which, in course of time, would be burnt out or warped, as the grate in the furnace would be, by the continued action of fire thereon. And if such results of the action •of fire upon these materials, while in ordinary use, are not within the risk, it would be difficult to say upon *34 what degree of heat or under what conditions, the liability under the policy would attach for injury caused by the action of fire while confined to the furnace, and producing no external ignition. If a person has his-house insured against all loss or damage by fire, and he should make a fire in his grate or fire-place of such intense heat as to crack his chimney, or to warp or crack his mantle-pieces, it could hardly be contended that he could hold the insurance company liable for such damage, though the damage was unintentionally allowed to be produced by the action of fire. In such case the fire would not have extended beyond the proper limits within which it was intended to burn; but the heat emitted therefrom would have produced effects not intended by the insured.

No doubt there are many instances where the insurer has been held liable for injury done to'buildings and furniture by heat or smoke, ivithout actual ignition, where the heat or smoke has proceeded from fire outside of and beyond the limits of the place where it was intended, by the contract of insurance, to burn. But that is a different question from that presented by the instruction granted at the instance of the defendant in this case, and in accordance with which, we must assume, the jury have found the facts to exist. Here, according to the facts found by the jury, the internal injury to the boiler was produced by the action of fire in the furnace, and not beyond that limit.

We have found no decided case directly in point of fact with this; but text writers of reliable authority, drawing their conclusions from analogy, would seem to maintain fully the proposition embodied in the instruction granted by the Court below at the instance of the defendant.

In Wood on Fire Insurance, sec. 103, it is laid down as text law, that “Where fire is employed as an agent, *35 either for the ordinary purposes of heating the building, for the purposes of manufacture, or as an instrument of art, the insurer is not liable for the consequences thereof, so long as the fire itself is confined within the limit of the agencies employed, as, from the effects of smoke or heat evolved thereby, or escaping therefrom, from any cause, whether intentional or accidental. In order to bring such consequences .within the risk, there must he actual ignition outside of the agencies employed, not purposely caused by the assured, and these, as a consequence of such ignition, dehors the agencies.” And in connection with this passage of his text, the author refers to and states the facts of the case of Austin vs. Drewe, as reported in 4 Camp., 361, and 6 Taunt., 436. But in regard to that case, Mr. May, in his work on Insurance, sec. 402, says: “It has often been said that loss by fire means by actual ignition; and for this the early case of Austin vs. Drewe, 6 Taunt., 436, is cited as an authority, which simply decides that an insurance company is not liable, on a policy insuring against all (damage by fire to the stock and utensils of a sugar-house, for damage done to the sugar by the heat of the usual fires employed for refining, the fires being unusually intense by reason of negligence in their management. And it has been suggested that the true ground of that decision was, that insurers do not undertake to be responsible for the excessive use of fire purposely used, whereby the article to which the fire is purposely applied is damaged, whether by heat or ignition; and that they would he no more liable in this case than they would he where bread is overbaked or coffee is overroasted. At all events, if the case of Austin vs. Drewe decides anything more than'is here suggested, it has been denied to he good law;’ ’ and the author refers to the case of Scripture vs. Lowell Mut. Fire Ins. Co., 10 Cush., 356 , where the criticism suggested was made upon the case of Austin *36 vs. Drewe by Judge Cushing. The criticism, however, if well founded, does not seem to involve anything material to. this case. The conclusion deduced from the case of Austin vs. Drewe, and which Judge Cushing thinks the proper, and the sound and sensible one, is that stated by Mr. May, and which we have already quoted.

(Decided 24th March, 1891)

We think the .Court below properly instructed the jury by granting the plaintiff’s third and fourth prayers, and the plaintiff’s fifth prayer in connection with the prayer offered by the defendant, and that there was no error in rejecting the first, second and sixth prayers of the plaintiff; and therefore the judgment must be affirmed.

Judgment affirmed.