LEONARD v. ORIENT INS. CO., 109 F. 286

WOODS, Circuit Judge, after making the foregoing statement, delivered the opinion of the court. In Dows v. Insurance Co., 127 Mass. 346, where the action was upon fire policies containing a clause concerning explosions like that in the policy before us, it was said, on the authority of Scripture v. Insurance Co., 10 Cush. 356, 57 Am.

Dec. 111, that, “the explosion in the upper story having been caused by fire, the insurers, if no clause had been inserted restricting their liability for losses by explosion, would have been liable for the losses, whether by the explosion or by the subsequent fire, to the amount of the insurance.” One of the policies also contained the provision, “If a building shall fall, except as the result of fire, all insurance by this company on it or its contents shall immediately cease and determine,” in respect to which it was said: “The question is whether this last provision is applicable to the facts of the case, and, in the opinion of the majority of the judges, it is not.

The provision, being introduced by the insurers and for their benefit, is, by a familiar rule, to be construed, in case of ambiguity, most strongly against them. It appears to us to have bad in view tbe case of a building falling by reason of inherent defects, or by tbe withdrawal of tbe necessary support, as by digging away tbe underlying or adjacent soil. It might, perhaps, include tbe case of a building thrown down by a storm or flood or earthquake.

But it would be construing this provision too liberally in favor of the insurers to hold it to include the case of the destruction of a building by. an explosion within the building itself, and of a fire immediately ensuing upon and connected with such an explosion, the measure of the liability for which has been carefully and precisely defined in the previous provisions of the policy.” The fact that in the present case the explosion occurred outside of the building in which the insured goods were kept cannot affect the liability of the insurer, if otherwise liable, for the loss by fire which immediately ensued.

If there had been no' fall of the building or of any part of it, and the flame attending or ensuing upon the explosion had reached the insured goods through an open door or window, liability under the policy for the loss would be beyond dispute. Is it to be said that there is no liability simply because the first effect .of the explosion was to break a passageway into the building for the fire which in a few moments followed?

Confessedly, there would be liability if the flame had entered through any opening, caused or not caused by the explosion, if no part of the building had fallen; but should there be no liability if a piece of glass falling from a window shattered by the explosion had given admission to the flame? The language of the contract is clear that if any part of the building shall fall, except as the result of fire, all insurance on building or contents “shall immediately cease.” The words are surely, as they have been declared to be, “terse and expressive.” They are unqualified and universal, admitting of neither

interpretation nor construction, and, if applicable, it would seem, should be allowed their literal significance. It is not to b,e said that they are applicable, and yet not to be applied literally.

It may not be said that “any part” of a building must be deemed to mean an important part, or such a part as might cause, or be supposed likely to cause, or at least to enhance the danger of, loss by fire. “It was competent for these parties to fix the terms of their agreement.” Where they wrote and. subscribed “any part,” they must be presumed to have meant any part, great or small, if observable or readily discoverable.

Even if it could be said that the part must be large enough to cause or to be likely to enter into the risk of loss by fire, the qualification could mean little, because conditions are readily supposable, and are not improbable, in which the fall of material of small weight or bulk would 'be enough to start a fire. Not much, is necessary to overturn a stove or to scatter the fire of an open grate or hearth, and still less to ignite a match.

If there had been a window on the west side of the building in question,’ the falling of a shutter or of a pane of glass would probably have been followed by the same loss to the plaintiff in error which ensued upon the falling of the corner of the building. On the theory of strict adherence to the meaning of plain words, these propositions cannot well be denied; and upon that theory the case of Kiesel & Co. v. Sun Ins. Office of London, 31 C. C. A. 515, 88 Fed. 243, is urged upon our attention in support of the ruling below. The case, however, is not in point.

The policy there in suit contained the clauses now under consideration; but, there having been no explosion, the building fell, and the goods insured were burned, and the question was whether the fall was caused by the fire or by a gale of wind.

It is perhaps worth while, however, to observe that the literal significance of the contract seems to have been departed from when it was said in the opinion that if the building “was on fire, and if it would have fallen by force of the wind if there had been no fire, then its fall could not be said to have been the result of the fire, and the defendant was not liable.” Any question of non sequitur in the statement aside, it: is certainly not inconsistent with the express terms of the contract that in such a case the insurer should be liable for the damage done before the fall occurs, though not caused by the fire.

The insurance ceases only at the instant of the fall, and it follows, on a strict construction, that “the cause of the fall” can be the test of liability only from that instant. The case before us is one of destruction by fire, which immediately followed, and with propriety may be said to have been caused by, an explosion. Whether that explosion was caused by fire, it is not necessary for the present purpose to consider. See Briggs v. Insurance Co., 53 N. Y. 446.

The liability of the insurance company for fire immediately ensuing upon an “explosion of any kind or lightning” was “carefully and precisely defined” in a clause devoted to the subject; and we agree with the opinion in Dows v.

Insurance Co., supra, that the succeeding clause, whatever its construction when applicable, should not be deemed “to include cases of destruction by explosion and by fire ensuing upon and immediately connected therewith.” In this way the two clauses may well stand together, neither interfering with the legitimate office of the other; while if the latter is to be applied and enforced according to its literal meaning in every case where by reason of an explosion or otherwise the building, or a part of it, falls just before or during a fire, which otherwise would he within the contract, it will lead to results which the parties to policies may not both he supposed to anticipate, and which the courts need not and should not approve.

The judgment below is reversed, and the cause remanded, with direction to grant a new trial.