AMERICAN STEAM BOILER INS. CO. v. CHICAGO SUGAR REFINING CO., 57 F. 294

BUNN, District Judge, after stating the facts as above reported, delivered the opinion of the court. The circuit court found as a conclusion that the explosion was the cause of the damage, and gave judgment in favor of the plaintiff, now the defendant in error. Counsel for plaintiff in error contest this conclusion, and, in opposition to it, make two contentions : First.

That if the disaster was caused by an accident in the general sense of that term, it was not such an accident as was insured against by the policy; that the word “accident,” as it occurs in the policy, is used subjectively, the same as the word “explosion,” and only covers accidents in the machinery, due to its own imperfections; and that, if the damage can be said to have resulted from accident at all, it is not one resulting from any defect in the machinery, and is not therefore fairly within the purview of the policy. Second.

That the loss was properly a fir,e loss, and, as such, not insured against by the policy. According to the view this court has taken of the last contention, it is not necessary to consider the first one. The insurance company issuing the policy in suit was a boiler insurance company. Their charter did not authorize them to insure against loss by fire. The law of New York under which the company was organized did not authorize nor contemplate insurance against loss by fire. The premium paid was not the premium which would have been demanded by a fire insurance company.

The premium of one-half of 1 per cent, was no doubt a much smaller premium than would have been required for fire insurance, and was made commensurate with the risk taken, which, in the language of the policy, was that of “explosion and accident, and against loss or damage resulting therefrom.” This being the case, the policy should not be construed as including an indemnity against loss by fire, unless such a construction becomes necessary.

Certainly, a construction which would make the action of the company in issuing the policy ultra vires, should not be sought or adopted if any other reasonable construction lies close at hand, and is in accordance with the plain and obvious meaning of the language used, and the one which must have been contemplated by the parties themselves. When we look at the language of the policy, it is quite apparent that the parties not only did not contemplate or provide for such a risk, but, on the contrary, provided against it in language that is comprehensive and unmistakable.

The third condition or covenant on the back of the policy contains this provision, which is a part of the contract of the parties: “And no claim shall be made under this policy for any explosion or loss caused by the burning of the building or steamer containing the boiler or boilers, engines, elevators, or machinery, or for any loss or damage by fire resulting from any cause whatever.” It must be admitted that stronger or more comprehensive language could not have been chosen to show that there was no indemnity against loss by tire contemplated.

The meaning and force of it is sought, to be broken by counsel for defendant in error by saying that it is inconsistent with the main provision for 'insurance. in ihe body of the policy, and therefore should not be given effect, — in analogy to a principle in the law of real estate that, when a condition in a deed is inconsistent with the grant itself, it; is void. But it seems evident that, this principle can have no application to this case.

In this case, no doubt, the true principle of construction is that all parts of the policy should be considered and construed together in order to arrive at the true intent, of the parties; but, aside from' this, we can discover no inconsistency between the provisions in the body of the policy and this condition. The policy nowhere professes to insure against loss by fire.

The company is a boiler insurance company, and it undertakes in the policy to insure against “explosion and accident,” and there is a condition on the back of the policy which limits the term “‘explosion’ to imam only a sudden and substantial rupture” of the shell or flues of the boiler or boilers, caused by the action of steam. It is not contended that this condition is void, though, no doubt, it qualifies and limits materially the language of the provision in the body of the policy. Insurance against fire is perhaps the most common and important insurance indemnity known to business.

It would be very unusual in a fire insurance policy if nothing were said in the indemnity clause of the policy directly and in terms about: insurance against, loss by fire. We suppose it might be po'ssible to draw such a policy, but it would be, in a business way, very unusual. Now, it is manifest there is no provision in terms in this policy for insurance against; fire. If it is there at all, it must rest, upon inference and construction, which ought not to be in an insurance so common as that against; fire.

It was, no doubt, to guard against, any such possible construction or inference that the express provision was put, in against indemnity for “any loss or damage by fire resulting from any cause whatever.” There is no Inconsistency between this provision and the provision for insurance in the body of the policy, which, without this, should not be construed as an indemnity against fire. The putting in of this clause leaves little room for construction. Its import is too obvious and necessary.

If the term “accident,” as used in the policy, means accidents generally, those produced from outside causes as well as those resulting from defective machinery, still the accident; of fire must be excepted’by force of this condition of the policy. That the disaster which resulted in the destruction of the buildings and machinery was caused hy fire is apparent from the evidence, and from the finding of facts by the court,. The controlling, efficient cause was fire.

The court finds that; “the disaster was caused by the ignition of the inflammable gas or mill dust in the drying house.” And the evidence fully supports this finding. The record shows that there was a fire in the ldln on three separate days. On tlie first day it liad extended to the top of tlie kiln. It was a dangerous fire, and caused the attendants •much trouble. "When they thought they had succeeded in putting it out, they would find it suddenly starting up again.

The finding of the court shows that “the blaze was a clear, bright flame, and was-quite extensive, and burned strongly, being from six to eight inches high, and extending under the pipes to the hack of the kiln. * * *” i):r. Behr, a chemist, and the superintendent of the refinery, says: ■ “We were always afraid of fire.

As it happened, the dust caught fire, and the explanation of that is that such fine powders, if you powder it up fine enough, have the property of catching fire.” And he further says: ' “Hobbold came to me, and said, ‘There is a fire in the dextrine kiln.’ Now, .generally, the first impulse when there is a fire is to put it out.

I said, ‘Let’si go.there and put it out before it catches any further.’ * * * Before I had á chance to collect my mind or close the door- [of the kiln] I got a kind of a flash, and that is all I know. * * * Such dust will catch fire, and bum like coal gas and air. * * * It takes very little to make this mixture of starch and air combustible. Just wbat happened as it caught fire I do not know. * * * After having had the experience, I can say now that I could have prevented the explosion if I hadn’t opened the kiln.

If the fire could have been confined to the kiln only, the damage would have been slight: ■there would not have been any explosion.” Again, he says: ' “It [the blaze] was so long and big that it could not have been created by a piece of wood. A piece of wood would have no business there.” '..Witness Hobbold, one of the attendants, testifies: “After we opened the door there was a flame.

The fire reached to a flame between the time when I went up to the office and came down again on tlie 'bottom of the kiln. * * * The fire was in the rear; * * * in the rear of tlie steam pipes, and underneath; underneath the steam pipes on the floor; on the foundation. The crust that was packed tight from that 26th day that night was what was burning. The water got on there, and made a regular, you may say, pancake, and the heat dried it, and the crust got tight to the railing there, and laid underneath it there, and fire burned that crust.

There was no dirt burning; only these crusts were burning, — the paste made out of the dextrine and the water. When I got out the first row, we moved up Uie ■second, and Dr. Behr took hold of the hose then, and got into the second, and probably, or so it seems to me, be must have got a little too high or too low, and some water got on top, and threw some of this dextrine off, and raised a dust, and that stuff struck the fire below, aud that brought the explosion. * I * * Ou the night of the 25th I was called at 11 o’clock. I was told the fire was there at 9 o’clock.

I believe the engines and firemen put the fire out on the night of tlie 25th. On the morning of the 26th there was one crust that was burning. I saw that crust. I took a pail, — a tin pail, — and got water on that crust, aud drowned it. * * * The pans were taken out on the morning of the 27th. They were not spoiled. It was cooked all right, but the fire bad been all over the kiln until [as far as] the top; and on top we found, trays that was burnt, and there was nothing left but a little bit of coals, — Wbat you get after you bum paper, — on the top of the kiln.” .. Again, Dr.

Behr testifies; * .“When I opened the door there was not a sudden burst of flame. The flame was like a hard coal fire burning in a furnace: just a little flickering flame; hot ijkc charcoal. It was a clear flame. Two days before there was a •fife ‘there, :and we certainly thought that the water would do away with all tendency to further catching Are. It was just like a liaste. and I got it all over my boots. That was cleaned out. The accumulation that was left was very little, but it was enough to catch Are. It must have come from the spilling out of the pans as they were shoved in there.

The starch is put in there in a dry shape as powder. It does not become hard when heated. It can be changed into a dextrine at a high temperature, like they do it in Europe, and quickly changed; or by the use of low temperature, or by steam, like we do it, and take more time. After having had the experience, I can say now I could have prevented the explosion if I hadn’t opened the kiln. If the fire could have "been conñned to the kiln only, the damage would have been slight. There would not have been any explosion.

Hobbold notified me of the fire about six o’clock on the twenty-seventh of March, and I came down to the dextrine room, and had the kilns opened. There was a fire underneath, five or six or eight inches high, and underneath the coils of the pipes. Hobbold had played the stream from the extinguisher possibly about half a minute or so before I became unconscious. When I first noticed the fire under the pipes in Hie kiln, I directed Hobbold to put the water on the fire with the Babcock fire extinguisher. We had had an experience two days before in putting out a fire in that manner. I was not there.

It was in the night, and they liad put it out readily. I thought the easiest way to put it out ivas with the Babcock extinguisher. The explosion in the dextrine kiln originated from the fire. It was not sufficient to cause the destruction; but it was communicated then to the room above, and caused an explosion and destruction of the building.

There must have been a second explosion in the rooms up, stairs.” Prom the testimony and the findings it seems quite clear that the proximate and legal cause of the disaster was this persistent and dangerous fire, originating in the kilns, and progressing to a final destruction of the buildings, and that the explosion was a consequence of the fire, marking a stage in its progress. After the explosion the testimony shows that the fire continued, destroying the debris of the building; so that the entire result is traceable to the fire in the kilns as the efficient cause.

There is nothing more common, when a fire is once in progress, than for explosions to take place as a result of the fire, and as a part of it. These explosions may add very materially to the destruction of property, hut it would be to lose sight of a plain principle to attribute the loss in such cases to the explosion as the proximate cause.

The explosion may he the proximate cause in the literal sense of its being the next, nearest, or immediate cause, hut not in the legal sense of being the real and efficient cause, where there is a concatenation of causes and effects, each successive effect becoming in turn a cause. The rule applicable here is the one laid down by Mr. Justice Strong in Insurance Co. v. Boon, 95 U. S. 117. “The proximate cause is the efficient canse, — the one that necessarily sets the other causes in operation.

The causes that are merely incidental or instruments of a superior or controlling agency are not the proximate causes and the responsible ones, though they may be nearer in time to the result. It is only when the causes are independent of each other that the nearest is, of course, to be charged with the disaster.” Here the fire was the cause of the explosion, which played its full share in producing the wreck, the fire again getting in its work after the explosion took place. As was said by Mr. Justice Cushing in the leading case of Scripture v.

Insurance Co., 10 Cush. 336: ‘‘If, then, a combustible substance in the process of combustion produces explosion also, it is not easy to perceive why, of the two diverse but concurrent results of the combustion, the one should be ascribed to fire any less than the other. The plain fact here is the application of fire to a substance susceptible of ignition, the consequent ignition of that substance, and immediate damage to the premises thereby. It is no sufficient answer to say that some of the phenomena produced are in the form of explosion.

All the effects, whatever they may be in form, are the natural results of the combustion of a combustible substance; and, as the combustion is the action of fire, this must be held to he tho proximate and legal cause of all the damage done to the premises of the plaintiff.” Nor is it any answer to say that tlie explosion would not have happened if the fire had been better managed, and the door of the kiln been kept closed. The attendants, perhaps, did not choose the best and safest method of extinguishing the fiames, hut they acted in good faith, and thought they were doing the best that could he done.

Suppose a fire had caught in any other place inside the building, and in trying to extinguish it an attendant had, in the excitement of the moment, caught up A bucket of crude petroleum, supposing it to he water, and had cast the contents upon the flames, and an explosion had resulted, destroying the building, there could he no question in such a case but that a fire insurance company would he liable as for a loss by fire, although it might be reasoned that, hut for such mismanagement, the fire might have been subdued. This case is not different in principle from the one supposed.

In either the controlling cause of the loss is the fire. If the explosion was the immediate cause of the greater damage, the fire was the cause of the explosion, the cause of the cause. It will frequently happen in the case of a fire that the greater part of the damage is caused by water applied in efforts to extinguish the flames; yet it has always been held that the legal and efficient cause of such damage is the fire, and insurers against fire are held for it. The rule laid down by the court in Scripture v.

Insurance Co. is the one that has been generally followed, and is applicable here, namely: “Tliat where tbe effects produced are tbe immediate results of tbe action of a burniug substance iu contact with a building, it is immaterial whether these results manifest themselves in the form of combustion or explosion or both combined. In either case the damage occurring is by the action of fire,, and covered by the ordinary terms of a policy against loss by fire.” This principle has been frequently, and we think generally, acted upon since. It governed in the case of Washburn v. Insurance Co., 2 Fed.

Rep. 304, decided by Judge Swing. To the same effect are Washburn v. Insurance Co., Id. 633, 2 Flip. 664, decided by Mr. Justice Swayne of the supreme court; Washburn v. Artisans’ Ins. Co., Same v. Pennsylvania Ins. Co., (Cir. Ct. W. D. Pa.) 9 Pittsb. Leg. J. (N. S.) 55. These decisions, though made in the circuit courts, have never been overruled, and are sound in principle. The same principle is recognized and adopted by the best text writers on the,subject.

Philips, in his work on Insurance, (section 1097,) says “the maxim ‘causa próxima spectatur,”’ affords no help in these cases, but in fact is fallacious; for, if two causes conspire, and one must be chosen, the more scientific inquiry seems to be whether one is not the efficient cause, and the other merely instrumental or merely incidental, and not which is nearest in place or time to the consummation of the catastrophe. And at

section 1132, he says: “In case of the occurrence of different causes to one of which it is necessary to attribute the loss, it is to be attributed to the efficient predominating peril, whether it is or is not in activity at the consummation of the disaster.” The mile is well stated by the supreme court of Michigan in Brady v. Insurance Co., 11 Mich. 425. They say: “This contract of insurance is one of indemnity against loss by fire, and the whole loss of which the five is tlie actual cause is within its terms to the extent of the indemnity promised.

Much is said by judges of the proximate and remote cause of the loss, and the distinction was very elaborately discussed by counsel in the present case; but, after careful consideration, 1 must confess tlml to my mind the word ‘proximate’ is unfortunately used, and serves often to mislead the inquirer, and to produce misapprehension of the real rule of law.

That which is the actual cause of the loss, whether operating directly or by putting intervening agencies — the operation of which could nor. be reasonably avoided — in motion, by which the loss is produced, is the cause to which such loss should be attributed. If, in the effort to extinguish fire, property is damaged or destroyed by water, the water may be said to be the proximate cause of the injury or destruction; yet in no just sense can it be said to be the actual cause. That was the fire. The fair and reasonable

interpretation of a policy of insurance against loss by fire will include within the obligation of the insurer every loss which necessarily follows from the occurrence of the fire, to the amount of the actual injury to the subject of the risk, whenever that injury arises directly and immediately from the peril, or necessarily from incidental and surrounding circumstance's, the operation and influence of which could not be avoided.” In Insurance Co. v. Foote, 22 Ohio St. 340, tlie same principle is carried out.

There tlie action was upon a fire insurance policy which provided that, the company should not be liable for any loss or damage occasioned by or resalíing from any explosion whatever, whether of steam, gunpowder, camphene, coal oil, etc. It appeared that an explosive mixture of whisky vapor and atmosphere had come in contact with the flame of a gas jet, from which it ignited, and immediately exploded, whereby a fire was set in motion, which destroyed the property. It was justly held that the explosion was the cause of the loss, and that the company was not liable.

The court say on page 349 that: “It is true that the explosion was caused by a burning gas jet, but that was not such a lire, as contemplated by the parties, as the peril insured against.

The gas jot, though burning, was not a destructive force, against the immediate effects of which the policy was intended as a protection, although it was a possible means of putting such destructive force in motion1; it was no more the peril insured against than a friction match in the pocket of an incendiary.” This was but carrying out the principle adopted in all the cases that we must look to the efficient or proximate cause to determine the responsibility for the disaster.

And on page 351 the court say: "That a loss other than by combustion, resulting from an explosion, when the explosion itself is caused by a destructivo fire already in progress, comes within the general risk of a policy against lire only, Is a doctrine not only reasonable in itself, but is sustained, by authority.” See, also, Waters v. Insurance Co., 11 Pet. 225, opinion "by Judge Story; Scripture v. Insurance Co., 10 Cush. 357; Millaudon v. Insurance Co., 4 La. Ann. 15; Insurance Co. v. Corlies, 21 Wend. 367.

The conclusion we have reached is that the policy sued upon contains no indemnity against loss by fire, and that the damage to the premises of the defendant in error was caused by fire, and that the loss was properly a fire loss. Judgment reversed, and the cause remanded, with directions to the circuit court to enter judgment of no cause of action, and for costs in favor of the plaintiff in error. Mr. Justice HARLAN is not present, but he participated in the hearing and the decision of this case, and concurs in this opinion.