Summary
Appeal from, St. Louis Court of Common Pleas.
This was an action upon a policy of insurance on the steamboat St. Joseph. The case was submitted upon an agreed statement of facts, in which the circumstances of the loss are stated as follows :
“ On the 2Sd day of January, 1850, when on a voyage from New Orleans to St. Louis, properly manned and equipped, at about six o’clock in the evening (about forty miles below Napoleon, in Arkansas,) said boat was running with a full head of steam, when the larboard boiler blew out from the head of the flues up, which caused the boiler to rebound and lodge on the starboard cylinder, thus tearing away the stanchions, so that the boiler deck immediately fell down into the furnace and took fire. Every effort possible was made to extinguish the flames without success, and the boat burned to the water’s edge, and was a total loss. The boat was towed in to the shore by another boat, and there scuttled and sunk, as the only means of saving the portion of the cargo in the hold, which was done on the deliberate advice and consent of the masters and officers.”
The policy stated the perils insured against to be “ of the rivers, fire, enemies, pirates, assailing thieves, and all other losses and misfortunes which shall come to the hurt, detriment or damage of the said steamer, according to the true intent and meaning of this policy.”
A subsequent clause was as follows : “In case of partial damage over ten per cent., this company to pay in proportion as the sum insured is to the whole value of said boat; but not accountable for damages done by the bursting of a boiler or boilers, or the breaking of machinery, except when caused by external violence.”
The only question was, whether the loss was covered by the policy. The court below gave judgment for the plaintiffs, and the defendant appealed.
1. The loss in this case was the immediate consequence of the bursting of the boiler and fairly attributable to it. Roe & Kercheval v. Columbus Insurance Company. 2. The Insurance Company is not liable for any loss occasioned by the bursting of a boiler. There is nothing in the policy to warrant the construction that the clause of exemption was intended to apply to partial losses only, either in the phraseology of the exception, or in its position in the policy, with reference to other parts of it. It de-dares that the company is not responsible ‘ ’for damages done by the bursting of a boiler,” &c. What damages ? It does not specify ; it does no.t say damages amounting to a partial loss nor to a total loss. The answer must be, all damages, great and small. Assuming the decision in the case of Glasgow, Shaw & Larkin v. Citizens’ Insurance Company to be correct, this case is clearly distinguishable from that, and is more like the case of Roe & Kercheval v. Columbus Insurance Company. The maxim, noscitur a sociis, cannot apply except where the words employed are doubtful. It cannot change the obvious meaning of the words, nor contradict the intention of the policy plainly expressed. 5 Cranch, 335. 1 Story’s Rep. 360.
1. Fire and water, two of the perils insured against, were the proximate causes of the loss. The explosion had done its work — had destroyed as far as its power extended, when a new peril (fire) intervened, and was rapidly rendering a total loss what, without it, would have been but partial. The boat was then properly scuttled and sunk, as the best means of-saving cargo and materials. The proximate cause of the loss alone ought to be considered. Columbia Insurance Co. of Alexandria v. Lawrence, 10 Peters, 507. Waters v. Merchants’ Lou. Ins. Co., 11 Pet, 213. Bishop v. Peniland, 7 B. & C. 210. 2. The exempting clause in the policy does not apply to cases of total loss. This is manifest from the use of the word “ damages.” Who ever speaks of a thing totally lost as damaged ? Again, it is manifest from the connection in which the clause is found. It occurs among the partial losses. An instrument should be construed most strongly against the maker. The ease of Glasgow, Shaw & Larkin v. Citizens’ Insurance Co., 9 Mo. Rep. is applicable here. This case is fully as strong, if not stronger, than that. The case of Roe & Kercheval v. Col. Ins. Co. turned upon the peculiar phraseology of the policy, which expressly contemplated the remote pause, using the phrases “ arising from” and “ or from any consequences resulting therefrom.” The opinion expressly recognizes the distinction, and rests upon it. The exemption is also referred back to the enumeration of perils by the use of the word “ provided.” Here there is no such reference. It is the commencement of a clause upon a new subject,-tyiz., partial damage.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
