
    Veryl Preston, Appellant, v. Ætna Insurance Company, Respondent.
    First Department,
    April 5, 1907.
    Insurance—fire insurance on motor vehicle — contract construed.
    Under a policy oí fire insurance upon an automobile indemnifying against damage by fire, except damage “caused by fire originating within the vehicle,” the insured is entitled to indemnity for a loss caused by .the ignition of gasoline liberated by the overturning of the vehicle, which ignition was caused by a lighted lamp attached to the exterior of the vehicle. Such fire does not originate within the vehicle within the meaning of the policy.
    If a provision of a policy is susceptible of two constructions, so that reasonable men would differ as to its meaning, that construction most favorable to the insured will be adopted, especially where the liability of the insurance company is general and a fire is sought to be brought within an exception to the general liability.
    Clarke, J., dissented.
    Appeal by the plaintiff, Yeryl Preston, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 29th day of November, 1905, upon the report of a referee, dismissing the complaint upon the merits.
    
      Graham Sumner, for the appellant.
    
      Ernest A. Cardozo, for the respondent.
   Ingraham, J.:

The plaintiff was the owner of an automobile valued at $16,000, on which the defendant issued a policy of insurance by which the plaintiff was insured for one year, from the 10th day of October, 1901, “ against all direct loss or damage by fire, except as hereinafter provided to an amount not exceeding Sixty-five hundred dollars,” providing that “ It is understood and agreed that this policy does not cover loss or damage caused by fire originating within the vehicle.” The referee found the issuing of the policy; that the plaintiff was the owner of the automobile; that. on the night of July 26, 1902, this automobile in charge of the plaintiff’s chauffeur while going from Pleasure Bay to Monmouth, N. J., ran off the road which it was traversing into a ditch at the side of the road; that after the accident the automobile lay partly in the ditch; that the automobile carried two kerosene lamps on either side of the dashboard, attached to projecting iron or steel brackets, a socket in the lamp fitting over the bracket and the lamp being made fast by means of a bolt and nut, tightening a clamp, one lamp being about two inches above the water; that both of these lamps were lighted at the time of the accident; that-the automobile was driven by gasoline vapor which was carried in a tank under the forward seat of the automobile; that after the accident the gasoline could be heard dripping on the water in the ditch, and the smell of gasoline vapor was distinguishable; that shortly after the accident a dull sound was heard and a column of smoke rose from the automobile, from which flames broke; that the chauffeur, who was left in charge of the automobile, was found on the ground across the. ditch and beyond a barbed wire fence on the further side, his clothes torn, his arm bare and his arm and both hands burned, and the gasoline on .the water about the automobile was found in flames. One of the persons ■ in the'automobile at the time of the accident testified that on the way back from Little Silver to Pleasure Bay, Raoul (the chauffeur) went off the road and. into the ditch. * * * . The machine came to a standstill atan angle * * *. of about forty degrees; ” that before he left the automobile he noticed that gasoline was escaping from the automobile; that he started for assistance,, and when he came back the automobile was blazing; that the fire lasted a half or three-quarters of an hour; that from the time the witness left the automobile until his return was about fifteen minutes; that when he returned the chauffeur was in a lot across the ditch, his hands were burned, but was able to walk. Wilson, another of the persons in this automobile, testified that there was a big searchlight that was .not lighted, and there were two other lights on the side that were lighted ; that after the automobile stopped and was still in the ditcli one of the side lamps was burning; that the witness started to get some horses to pull the automobile out of the ditch; that he got about a couple of hundred feet from the automobile when lie heard something go off,.and he looked back and the whole place was .on fire; that no one struck a match near the machine that he saw. Stone, another person in the. machine at the time, testified that after the accident he went to get a team of horses ; that, he saw that the two oil lamps on the side of the dashboard were burning; that he also smelled gasoline; that the water was about two and one-half inches below the base of the lamp on the right-hand side, and that the lamp was burning; that when he left with Newhouse the chauffeur was fussing around the right-hand lamp, the one near the water; that the witness and Newhouse then walked away about 100 feet, when they heard a muffled sound and turned and saw a black cloud and then flames followed, the automobile was in flames ; chat when the'witness came back to the automobile the liirhts were out. •

Assuming that this fire was communicated from the light in one of the lamps to the gasoline on the water, the only cause of the fire which is apparent, the question is whether the fire" that was communicated from the lamps to the gasoline on the water was a fire “ originating within the vehicle.” I think it was not. The motive power of these vehicles is the gas generated by the combustion of gasoline vapor in a chamber inside the vehicle. The gasoline tank is under the front seat and the machinery in front of the front seat. While it might be said that the .lamps and other appliances on the outside of the vehicle, and which are affixed to it, would be a part of the vehicle, certainly none of them are inside the vehicle, and not, therefore, within the vehicle. Using this highly inflammable substance, gasoline, exploded by electric sparks, exposed the machine tó danger of the gasoline in the tank exploding and setting fire to" the vehicle, and for such a fire the defendant was not to be liable, as such a fire would undoubtedly originate within the machine ; but the lamp was not within the vehicle, but was outside it, nor was the gasoline that ignited, and from which the fire originated, within the vehicle. If the gasoline had not escaped from within the vehicle, it is quite evident that there would have been no fire. The defendant was responsible for any damage caused to the machine by reason of the burning of the gasoline, whether it was in the tank or had leaked from the tank, provided the fire did not originate within the vehicle. I sxxppose there would have been no doubt that if the gasoline on the water in consequence of this accident had been ignited by a match or other light disconnected with the machine the defendant would have been liable, and the fact that the fire was communicated to the gasoline by a lamp scx'ewed on to the outside of the vehicle did not make it a fii’e originating within the vehicle. It is settled that if a provision in a policy is susceptible of two constructions, so that reasonable men on reading the contx-act would differ as to its meaning", that constnxction will be adopted which is most favorable to the insui'ed (Rickerson v. Hartford Fire Ins. Co., 149 N. Y. 307; Michael v. Prussian Nat. Ins. Co., 171 id. 25), and this rule is particularly applicable where the liability of the insurance company is gexieral and a fire is sought to be brought within an exception to the general liability to discharge the insurer. In such a case effect should be given to any clause exempting him from liability only where the case falls clearly within the exception, and that the doubt should be resolved against the company.” (Devitt v. Providence Washington Ins. Co., 61 App. Div. 390; affd., 173 N. Y. 17. See, also, Griffey v. N. Y. Cent. Ins. Co., 100 id. 417; Imperial Fire Ins. Co. v. Coos County, 151 U. S. 452.)

It seems to me, therefore, that this fire was not within the exception, and that the plaintiff was entitled to recover.

It follows that the judgment appealed from must be reversed and a new trial ordered, with costs to the appellant to abide "the event.

Patterson, P. J., Laughlin and Scott, JJ., concurred; Clarke, J., dissented.

Judgment reversed, new trial ’ ordered before another referee, costs to appellant to abide event. Settle order' oh notice.  