
    St. John and others against The American Mutual Fire and Marine Insurance Company.
    A policy, by which property was insured against loss or damage by Are, contained a condition that the insurer would not be liable for amy loss occasioned by the explosion of a steam boiler; and there was an explosion of a steam boiler in use in the building where the property was situated, whereby Are was brought in contact with and consumed the property; Held, that the loss was within the exception created by the condition, and the insurer not liable.
    Appeal from a judgment of the superior court of the city of New-York. The action was upon a policy of insurance issued by the defendants to the plaintiffs. On the trial before Campbell, J., in May, 1853, the plaintiffs read in evidence the policy of insurance, which was dated the 31st of March, 1849, by which the defendants insured the plaintiffs during one year “ against loss or damage by fire, to the amount of two thousand dollars, on their machinery and fixtures for blowing fur and forming hat bodies, including shafting and fixtures for communicating power, contained in the brick building situate Nos. 5 and 7 Hague street, in the city of New-York, occupied for mechanical purposes ; the policy to cover lathes and tools for making machinery contained in the building.” Among the conditions annexed to, and forming a part of the policy, was the following: “ This company will be liable for losses on property burnt by lightning, but not for any loss or damage by fire happening by means of • an invasion, insurrection, riot or civil commotion, or of any military or usurped power, nor for any loss occasioned by the explosion of a steam boiler, or explosions arising from any other cause, unless Specially specified in the policy.” The plaintiffs proved that there was a steam engine and boiler in the basement of the building in which the insured property was contained, used in propelling machinery; that on the fourth of February, 1850, there was an explosion of the boiler which threw down the building, and immediately thereafter smoke and flames issued from the ruins, and the building and its contents, including the property covered by the policy, were consumed. The plaintiffs read in evidence the proofs of loss delivered by them to the defendants soon after the destruction of the insured property. In their affidavit, composing a part of these proofs, the fire and the manner in which it originated are stated and described as follows : 11 That on the fourth day of February, 1850, a fire occurred in the said building, numbers 5 and 7 Hague street, whereby great and immediate loss and damage were sustained by deponents, by the injury done to their property insured as aforesaid. That the said fire originated on the said fourth day of February, 1850, and was immediately preceded by an explosion of a steam boiler on the said premises, whereby the walls of the said building were mostly thrown down, and the fire which was used in the furnace of the steam boiler, and in stoves in various parts of the said building, was communicated to the frame and woodwork of said building, and the materials and machinery contained therein.”
    At the close of the plaintiffs’ case, the counsel for the defendants moved the court to dismiss the complaint, on the ground that it appeared from the evidence that the insured property was brought into contact with the fire solely by means of the explosion of the boiler, and that thus the loss, so far as the same was caused by fire, was occasioned directly by such explosion of the boiler; and that, by the express conditions of the policy, the defendants were not liable for loss so occasioned. The justice granted the motion, and ordered judgment dismissing the complaint, and the counsel for the plaintiffs excepted. This judgment was affirmed by the superior court at general term; and the plaintiffs appealed to this court.
    
      A. L. Jordan, for the appellants.
    
      C. P. Kirkland, for the respondent.
   Denio, J.

As the sole peril insured against by this policy of insurance was loss or damage by fire, we should naturally expect, in examining exceptions contained in the contract, to find pointed out some circumstances under which the insurers would not hold themselves liable though a loss by fire should take place. Hence a loss occasioned by invasion, insurrection, riot and the like, has usually been found excepted in such policies; and although in this, and perhaps in policies generally, the exception in this respect is in terms of losses by fire, the clause would be equally definite and intelligible if those words were omitted in the clause stating the exception. When, therefore, this policy proceeds to declare that the defendants will not be liable for any loss occasioned by the explosion of a steam boiler,” it refers prima facie to such a loss as by the prior provisions of the contract the defendants would be bound to indemnify against, and not to one which would not be embraced in the general terms of the policy, and as to which there was no occasion to introduce an exception. The most usual consequence of the explosion of a steam boiler, is the breaking and rending the building in which it is contained and the movable property therein; and if this were the only consequence to be apprehended from such an occurrence, the exception introduced into this policy would be quite unnecessary, and we may presume it would not have been inserted. It would not be a loss or damage by fire, unless there was combustion, and then only to the extent of. the damage properly attributable to the combustion. (Millandon v. New Orleans Insurance Company, 4 Rob. Lou'a R. 15.) In one sense it is true the explosion is the consequence of fire, as steam is created by the application of heat; but it is understood that where fire is applied by design, as in culinary and several manufacturing processes, and a loss occurs in consequence of overheating or other misapplication of fire to the subject upon which it was intended to operate, and the injury is limited to that particular subject, such damage is not considered a loss by fire within the meaning of this class of contracts. (Beau mont on Ins. 37 and seq.) But another very usual concomitant of the explosion of a steam boiler is that the place in which it is situated is set on fire. Though this is not universally the case, it is sufficiently common to constitute a subject of consideration in entering into contracts for insurance. As the furnace is required to be in immediate proximity to the boiler, and as the explosion usually overturns and displaces every thing in its vicinity, the danger of a loss by burning is very imminent. I think, therefore, we must understand by the assertion that the company will not be liable for any loss occasioned by the explosion of a steam boiler, that the defendants contracted for an exemption not from responsibility for such losses as they would not be bound to make good if no such clause had been inserted, but for those which by the preceding terms of the policy they had agreed to indemnify, against, and which were very likely to be caused by an explosion. It is true, as argued by the plaintiffs’ counsel, that the language would have been more distinct and certain if the words by fire had been inserted, as in the earlier member of the sentence where losses by invasion, &c., are excepted; but where we see that the comprehensive words, any loss, are used in the place of any loss or damage by fire, we cannot, upon any authorized rules of'interpretation, hold that a restricted meaning was intended.

It is also true, as was insisted at the bar, that where the proximate cause of a loss, either in a marine or a fire policy, is one of the perils expressly insured against, the insurer cannot escape responsibility by showing that the property was brought within that peril by a cause not mentioned in the contract. The familiar example of a loss attributable to the negligence of the servants of the assured has recently been before this court, and we have recognized the principle to be as stated by the plaintiffs’ counsel. (Matthews v. The Howard Ins. Co., ante, p. 9.) If, therefore, there had been nothing said in this policy respecting a steam boiler, this loss, having been occasioned by fire as its proximate cause, would have rested on the insurers, though it had been shown, as it might have been, that the fire was kindled by means of the explosion. But this principle does not, I think, aid the plaintiffs. The doctrine is, that the courts will not go back to the remote cause where the immediate one belongs to the class insured against. Hence, as before remarked, the negligence of servants does not relieve the insurers. But suppose, by the very terms of a policy against fire, the parties agree that the insurers shall not be answerable for losses occasioned by the negligence of the servants of the assured, and it is found that a dwelling insured has been burned by the neglect of some necessary precaution which should have been taken by the housekeeper of the assured. It would clearly be a loss within the very terms of the exception, and the insurers would be discharged. The case is the same here. The parties knowing that fires were liable to be kindled by the explosion of a steam boiler, and that by the general terms of the policy the insurers would be liable for a fire thus originating, agreed that for such losses ' the party would be his own insurer.

The loss is within the terms of the exception, according to its popular meaning as well as its grammatical construction, and I do not see any thing in the nature of the case which would war- ’ rant us in indulging in a criticism which should give the language a different meaning.

There is, as was mentioned on the argument, a possible case where the language in question would not be entirely unmeaning upon the construction contended for by the defendants’ counsel. An explosion may be caused by a fire exterior to the boiler or furnace, and the building and moveables may be injured by the force of the steam, though no combustion takes place, and it may be true that the insurer would be protected from answering for that loss by the exception in question. But this theory requires a set of circumstances so unlikely to happen, that I cannot think that the contract was framed with any view to them. We shall, I am persuaded, be more likely to construe the contract according to the intention of the parties, by adopting that interpretation which is most natural and obvious, rather than to suppose possible cases, very unlikely to happen, and which it is improbable the parties had in view.

I am of opinion, therefore, that the judgment of the superior court should be affirmed

Johnson, J.

The question in this case is, whether the loss sustained by the plaintiffs by the burning of their property, under the circumstances of this case, was a loss occasioned by the explosion of a steam boiler. If it was, the defendants have expressly stipulated that they shall not be charged with it.

Several interpretations of the clause in question offer themselves for consideration. In the first place, it may be that the clause was introduced to exclude the mere injury by explosion without fire, and that although such an injury is not by law to be borne by an insurer against fire, yet that the insurers thought it wise to guard against the possibility of its being considered a loss by fire. That such a loss has been sought to be recovered as a loss by fire, though unsuccessfully, (Millandon v. New Orleans Insurance Co., 4 Lou'a R. 15,) and that the clause in question immediately follows a stipulation in respect to liability for property burnt by lightning, which undeniably is merely a statement of the exact measure of the liability Which the law imposes in the absence of any stipulation, are grounds for taking the view suggested of the clause in question.

Another interpretation suggested applies the exception to damage produced by explosion, when the explosion is caused by a fire which itself comes within the perils insured against: as in case a fire should occur in the engine room and its heat should cause the boiler to explode. Upon the interpretation suggested, the damage occasioned by the explosion would not be recoverable against the company. Still another interpretation applies the exception to any loss by fire occasioned by the explosion, and so exempts the company from responsibility for the loss in this case. This interpretation was adopted by the superior court, upon the ground that every stipulation in a contract should be so expounded as to give it some operation, and that this clause could have none unless it was so construed. Though the principle of exposition on which that court proceeded is sound, we have already seen that the clause is capable of meaning, without -recourse to the particular interpretation put upon it in that court. If either of these proposed interpretations is entirely satisfactory. The general peril against which the defendants undertook to indemnify the plaintiffs was “ immediate loss or damage by fire.” That was the subject matter, and the only one about which the contract was made. All the defendants’ relations with the plaintiffs grow out of that one subject matter; and any qualifications of their liability, contained in the contract, presumptively relate to the indemnity which they have contracted to afford to the plaintiffs, and to eases which but for those qualifications would or might be covered by the contract for indemnity. The language used, construing it with reference to the subject matter, is equivalent to a declaration on the part of the insurers that they are not to be held responsible for any loss, whether it comes within the general peril of fire or not, and without undertaking to consider whether it does or not, if such loss happen to be occasioned by the explosion of a steam boiler. This is, I think, the fair sense of the language employed. The prominent intention is to exclude the risk from the explosion of steam boilers—not the risk merely of the exploding force, but all risk. That peril the insured were content to bear. Among the risks consequent upon an explosion, the most prominent, next to the direct destruction by the explosive force, is the hazard from the fire of the furnaces and other fires in the building being thrown about among combustible matter. So patent is it, that no one can contemplate the event of an explosion, without recognizing this risk as one of the most obvious and important hazards attending upon such an event. Only one casualty happened to the premises and occasioned the destruction of property which the defendants are called upon to answer for. That was the explosion of the boiler. The burning was the direct and natural consequence of the explosion of the boiler, although it did not necessarily follow that fire would take place. It was as direct a consequence as the falling of the walls would have been in case the explosion had broken but a single timber, and the walls had not fallen for some hours. In such a case it might be argued that the explosion'broke but one timber, which brought too great weight upon some other, which giving way produced the catastrophe, and that therefore the fall of the whole was not a direct consequence of the explosion. The answer in both cases is, that 'the resulting destruction followed from the original casualty, without the intervention of any new cause, and followed from the nature and condition of the subject at the time of the casualty. The breaking ef the beam in the supposed case, and the scattering of the coals from the stoves in the actual case, are the direct and immediate consequences of the explosion of the boiler; the fall and the fire are the natural consequences, due to no new casualty, but resulting from obvious, natural forces, operating under the circumstances produced by the original exploding force. The whole loss in-both cases is the immediate consequence of the explosion of the boiler. It was urged upon the argument that as fire was the actual means of destruction of the property in question, the court could not look back beyond the fire, upon the familiar principle, “ causa próxima non remota spectatur.” It is undoubtedly true, that if the policy contained no exception, this loss would clearly have been a loss by fire. There would be no occasion to consider how the fire happened, the parties not having contracted for indemnity against fire occurring only in particular ways, but generally against fire. The existence of the exception renders the inquiry necessary to enable us to say whether the loss is within its terms, and the meaning of those terms we have already considered. It was also argued, that if the parties had intended to except loss by fire, occasioned by the explosion of a steam boiler, those words should have been used ; but that would have narrowed the exception to losses by fire only, whereas the language now used is broad enough to cover all losses so occasipned, whether by fire or explosive force, or in any other way in which losses by the excepted peril could be produced. The judgment should be affirmed.

Parker, J.

In this policy of insurance against fire- was an exception in the following words“ This company will be liable for losses on property burnt by lightning, but not for any loss or damage by fire happening by means of any invasion, insurrection, -riot or civil commotion, or of any military or usurped power, nor for any loss occasioned by the explosion of a steam boiler, or explosions arising from any other cause, unless specially specified in this policy.” It is a question of law whether the facts of the case, which are undisputed, are covered by this exception of the policy.

The policy must be so construed, if practicable, as to give effect to all its parts and make them severally consistent with each other. The insurance being against damage by fire alone, the exception of loss occasioned by the explosion of a steam boiler would be needless and-entirely inappropriate to the subject of the contract, unless it had some reference to damage done by fire. I think this clause was inserted with reference to the agency of fire, not in burning after the explosion, but in causing the explosion itself. All explosions of steam boilers are referrible to the action of fire. Without fire, there could be no steam and no explosion; and I think it was to save all doubt as to the question whether the destruction consequent upon an explosion was caused by fire, that the exception was inserted. ■ That doubt may have been suggested by Waters v. The Merchants’ Louis. Ins. Co., (11 Peters, 213,) and Millandon v. The N. O. Ins. Co., (4 Lou'a R. 15.) The- insured premises, having on them a steam- engine and boiler,- were much more exposed to injury than they would have been without them ; but by making an exception, which threw upon the insured the risk of injury from explosion, the premises could be insured at the same premium as other premises on which- there were no engine and boiler. The ordinary risk was thus cast upon the insurer, the extraordinary risk upon the insured. I do not think the parties to the contract had in view, at the time it was- made,- any other fire than that which, by its heat, caused the explosion.

But they provided, in express- terms,- that the insurers should not be liable for any loss occasioned by the explosion of a steam boiler. This is a full and complete protection against loss of every description which might be occasioned by such explosion. Such explosion might occasion loss in different ways. It did so in this cáse ;■ and because fire happened to be one of the means of destruction; it does not take that portion of the loss out of the exception and bring it within the general terms of the policy. The burning was as much a consequence of the explosion as the breaking and destruction from expansion- All were “occasioned” by the explosion. The explosion was caused by fire, but, with all its immediate consequences, it was excepted from the operation of the policy. The injury by fire is plainly within the exception, as the injury would have been, if the property had been destroyed by water in consequence of the breaking of the water-pipes by the explosion.

As to the extent to which consequential damage may be traced and charged to the moving cause, I suppose the same rule applies to the exception as to the policy itself. In an action on the policy for loss by fire, the insured would be indemnified not only for goods actually burned, but also for those wet and soiled, for furniture cracked and warped, and under some circumstances, for goods stolen and lost by the removal of goods. The construction I have put on the extent of the exception is certainly not broader. The fire was an immediate consequence of the explosion; and the loss of property by fire, as well as by breaking and displacement, was clearly occasioned by it.

The plaintiff could not recover for any damage caused by the explosion; and I think he had no more claim for that done by burning, than for that portion broken and crushed by the concussion. The judgment of the superior court should be affirmed.

Buggles and Edwarjjs, Js., were in favor of affirming the judgment.

Selden, J.; did not hear the argument, and took no part in the decision.

Gardiner, Ch. J., (dissented.)

The insurers say in that part of the condition of the policy, which has a supposed application to the case before us, that they will not be liable for any loss occasioned by the explosion of a steam boiler, or explosions arising from any other cause, unless specially specified in the policy.” The loss however, for which indemnity is sought in the present action, was occasioned by fire ; such is the statement of the insured in their affidavit, of the magistrate in his certificate, of the witnesses upon the trial, and of the counsel of the defendants, in their motion for a nonsuit; and if there could be a question as to the proximate cause of the injury, it was for the jury, and not for the court to determine. The plaintiffs were, however, nonsuited. The decision was sustained by the superior court, who held that the explosion was the proximate cause ' of the loss, and that the underwriters were consequently exempt from liability by force of the condition. If the learned court were correct in their premises, there can be no question as to the justice of the conclusion.

I had supposed that no one would contend that loss by fire, and loss by explosion, were equivalent expressions, in themselves considered, whether found in the condition of an insurance policy or elsewhere. Explosion and fire may stand to each other in the relation of cause and effect, but the two things are not identical. Indeed it was not claimed upon the argument that the explosion consumed the goods, but that it threw down stoves_ standing on the premises, and scattered the coals contained in them, bringing them in contact with the property, which in consequence took fire and was destroyed. How if the explosion had been a conscious agent of the insured, and had committed the same act; or if a servant through carelessness had overthrown the stoves, and the same consequences in every particular had resulted; the fire in the case supposed would have been the immediate, and the act of the servant the remote cause of the loss; and as the damages resulted immediately from the peril insured against, the insurers would have been held liable. So much has been repeatedly adjudged elsewhere, and the principie was recognized and affirmed in this court, in Mathews v. The Howard Ins. Co., (1 Kern. 9.) But the act of the servant, and the explosion of the boiler in this case, stood in the same relation to the loss of the property. Neither was the proximate cause of the damage, but the causa causarum, or remote cause of the loss. If there is a distinction in this respect between the two, it devolves upon those who rely upon it to state that distinction intelligibly. The attempt was made upon the argument; but when analyzed, the explanation amounted to this, that the explosion preceded the fire, and by its force brought coals to the goods, or goods to the coals, so that they took fire and were consumed; that the ultimate result followed the explosion so quickly, that the last must be held to be the immediate or proximate cause of the loss. Thus when pressed for the proximate cause of the loss, they give us the cause of the fire, and we thus come back by a circle to the point of departure. Indeed no argument would convince a man of ordinary understanding that, in the chain of sequences, the fire was not next to the loss, which was the immediate consequent of the fire, or that the explosion was not back of the fire; but as the transition from one to the other was rapid, therefore it is argued that the explosion was next to the loss; or at any rate, may be called proximate, within the condition of this policy. In this way, the order of events, as they occurred, is changed by affirmation, and a verbal unity established, by confounding subjects which are as' distinct as steam and fire. But one authority is invoked, and it is said that in 13.th Peters, (218,) the court held that loss by the explosion of gun powder was a loss by fire, as its proximate cause. But in that, and similar cases, the powder when ignited became fire, and other things being equal, the force of the explosion was in proportion to the rapidity of the combustion. If the steam generated in this boiler underwent a similar chemical change, and the explosion was due to the bombustion of water in a state of vapor as its cause, the authority is in point. Otherwise, it has no more application to this case than to an explosion occasioned by the freezing of a liquid. We are not, therefore, constrained by authority to declare that to be legally true which is physically impossible. And it is consolatory to know that the law may be maintained without outraging science.

My conclusion is, that as “ loss by fire ” in this policy, as we , all agree, means a loss, of which fire is the proximate cause, so loss by the explosion of a steam boiler ” should receive the same construction, and include those losses, of which the explosive force is the immediate cause, if we intend to abide by the authority of adjudged cases, or the language of the condition.

, The insurers so understood this provision. This is apparent from the first clause of this condition, by which they declare, “ that they will be liable for losses on property burnt by lightning.” Here the distinction is marked by them, between'the mechanical force exerted by electricity and ignition, arising from its contact with a combustible substance. Both may concur in producing an injury. A house may be prostrated, and set on fire by the same stroke. But the forces are different; the one is mechanical, the other chemical; and for a loss arising from the latter only, as its immediate cause, are the underwriters liable. So, in the clause in question, the insurers declare that they will not be liable for losses to property occasioned by any explosion; that is, by the forcible expansion of any elastic fluid; which is the definition of explosion. ( Web. D.) They in both clauses refer to a mechanical force put forth and resulting in an injury to the property insured. In the first, their exemption is necessarily implied; in the last, it is expressed; and this is the only difference between them.

Let us now suppose that the manufactory of the plaintiffs had been struck by lightning, and burning coals had been scattered by the shock so as to ignite the property insured, the defendants, all admit, would be liable for the loss, as falling directly within their general obligation to indemnify against damages by fire. That case is not distinguishable from the present. And yet what man, not under the control of a committee, would pretend, that in the case supposed, the property was burnt by lightning. And yet such conclusion is inevitable, by the same reasoning which establishes that the elastic force of steam in shattering the engine in which it was compressed, became the proximate cause of the burning, in the case before us.

There is another proposition, which has its advocates, which assumes that the explosion was the remote cause of the loss, but affirms that it is, notwithstanding, within the condition, because, otherwise, no sensible interpretation can be given to the clause in question. In other words, the clause rendered as it reads would be useless, as it would merely exempt the insurers in terms from an obligation which was never imposed upon them, in any event, by the policy. On this construction the policy and condition would read as follows : The insurers will be liable for all losses of which fire is the immediate cause, and they will not be liable for any loss by fire, of which an explosion is the remote cause. The first answer to this hypothesis is, that such is not the language of the condition, and the interpolation can only be justified on the ground of absolute necessity. 2d. That no such necessity exists ; because if the assumption upon which the proposition rests was true, which it is not, it would not authorize a change of phraseology, which is intelligible as it is, although unnecessary. 3d. The principle applied to the third clause, would require amendment also, of the first and second clauses of the same condition for the same reason. The first provision in reference to lightning is useless, because it leaves the liability of the insurers precisely as it would be if stricken from the policy. The second clause as to riots and civil commotion” is superfluous, because the same provision in his verbis is found in the body of the policy. As two out of the three provisions of the condition are superfluous, it would not be a serious imputation upon the wisdom of the insurers if the third was in the same category. This was rather to have been anticipated, if there is any thing in the maxim, noscitur a sociis. At all events, it does not follow that because two thirds of a condition are unnecessary, that the remainder must provide an immunity which the law would not grant without it.

But there is another answer to this proposition. It is founded on an assumption which is false in fact. So far from the condition as written being useless, it embraces and excepts every loss of which am explosion is the immediate cause, whether caused by fire, or arising from the combustion of the explosive substance, or otherwise. Upon this part of the argument, the case in 11 Peters, (supra,) seems to have been overlooked, though strongly pressed upon the question of proximate cause. There it was held, that loss by the explosion of gun powder was within the policy, which was against fire generally. But it was entirely competent for the underwriters in that case, and in all others, to declare that they would not be liable for damages occasioned by the explosive force of the powder. That is what the insurers have done by this condition. So in the case of camphene, and of every other explosive material. The same immunity would be secured to the insurers, if the manufactory of the plaintiff had taken fire, and steam had been generated by the heat, and the boiler had in consequence exploded, working the injury to the building and machinery that is shown by the evidence. But it is unnecessary to multiply examples. It is enough that entire classes of hazards are found which are exempted from the general obligation imposed by the policy, by the terms of this condition as written. It has therefore a practical operation. And the argument based upon its immateriality, weak as it is, is wholly fallacious. And lastly, it is said, that if the word “ carelessness” was substituted for “ explosion” in this condition, it would point to a remote cause, and that explosion” may therefore admit of a similar construction. But carelessness” is a quality attributable to an intelligent agent only; it cannot of itself, it is presumed, directly ignite, or destroy any thing. Explosion, on the contrary, is a physical force, and as such may be the immediate cause of a physical injury.

For the reasons assigned, I think the defendants have by their policy said to the plaintiffs, we will indemnify you against loss or damage by fire, but we will not indemnify against loss occasioned by the explosion of your steam boiler, whatever may be the cause of that explosion. If your machinery is rent by lightning, or by steam, and fire ensues, what is burnt is our loss ; what is destroyed by the explosion is your own. This, as it seems to me, is the spirit of the contract. If, however, there is doubt as to its meaning, it should be remembered that it is the language of the defendants,' and is not to be extended in their favor by construction.

The claim of the plaintiffs, supported by evidence, is for a loss for property burnt or damaged by fire, and not for property crushed, mutilated or destroyed by force of an explosion; and I think they are entitled to have then* claim submitted to a jury, and that the judge erred in directing a nonsuit. Such is my opinion. Five of my brethren think otherwise, and the judgment will be affirmed. If the majority had agreed in their reasons for the decision, I should have dissented without assigning the grounds for my opinion. But of the two propositions discussed, one or the other of which is essential to the defense, neither has received the sanction of this court. The judgment is sustained by a concurrent vote, founded not merely upon different, but adverse reasons.

Allen, J., delivered an opinion to the same effect as the foregoing by Gardiner, 0. J.

Judgment affirmed.  