
    The Boatman’s Fire and Marine Insurance Company v. Marcus C. Parker.
    1. A policy of insurance against loss or damage by fire contained a condition that the company would not be liable “for damage to property by lightning, aside from fire, . . nor for damages occasioned by the explosion of a steam-boiler, nor for damages by fire resulting from such explosion, nor explosions caused by gunpowder, gas, or other explosive substances.” Held, that the company is not exempted by this clause from liability for damage by fire resulting from an explosion of gas, but is thereby exempted from damage occasioned by the explosive force of the gas without communicating fire to the insured property.
    
      2. This case is distinguished from that of the United Life, Fire, and Marine Insurance Co. v. Foote et al., 22 Ohio St. 340.
    Error to the District Court of Cuyhoga county.
    The original action was brought on a policy of insurance against loss by fire.
    On the 1st day of August, 1867, the insurance company, for a premium of $141.50, issued its policy to Marcus C. Parker, insuring him for one year in the sum of $2,075, upon specified portions of an oil-refinery and property therein contained, located in the city of Cleveland, against loss or damage by fire.
    Among the twenty-three conditions attached to the policy, and made part thereof, the ninth is as follows :
    
      “ 9. This company will not be liable for damage to property by lightning, aside from fire, nor 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 damage occasioned by the explosion of a steam-boiler, nor for damage resulting from such explosion, nor explosions caused by gunpowder, gas, or other explosive substances, nor for damage occasioned by the use of campliene or burning-fluid, coal-oil, petroleum, or any of their products, by whatever name designated, unless otherwise expressly provided.”
    The fifteenth condition, among other things, requires the-insured, immediately after sustaining a loss or damage by fire, to give notice to the company or its agent in writing, and as soon as possible to deliver as particular an account of the loss or damage as the nature of the case will admit, showing when and how the fire originated, so far as he knows or believes.
    On the 28th of July, 1868, a portion of the property was destroyed by fire. Immediately the insured gave notice of the loss to the company, and soon thereafter furnished to the company, as required by the fifteenth condition of the policy, the preliminary proofs of the loss.In giving an account of the origin of the fire, as required, he stated,. “ that the fire originated in the receiving-house, and is supposed to have been caused by an explosion of gas.”
    The company declined to pay the loss, basing their refusal upon the ground that the proofs showed the loss was-caused by fire resulting from the explosion of gas, and that the ninth condition of the policy specially exempted them-from liability. By consent of the company, the insured furnished additional proofs of the loss, in which he states the cause of the fire, as follows :
    “ That after a full and thorough investigation of the cause- and origin of said fire, affiant has learned the facts to be as follows: That, owing to the peculiar state of the atmosphere at the time of the fire, the heavy gas escaping from the oil (which was in process of distillation at the time). settled down near the ground, and came in contact with the fires under the stills, and took fire, and the fire ran back some sixty-five feet to the receiving-house, and ignited the gas and oil in the receiving-house, which caused an explosion, and threw the ignited oil over the works, and they were consumed, as aforesaid. That previous to the igniting of said oil by said stills, there had been no fire about the receiving-house ; that the explosion in the receiving-house was caused by the fire coming in contact with the gas and oil of the receiving-house, as before stated; and the fire was-not caused by the explosion.”
    On receipt of the supplemental proofs, the company still declined to pay the loss, on the ground that the proofs showed the loss was occasioned by an explosion of gas, and that the ninth condition of the policy exempted the company from liability thereon. Thereupon the insured brought his action, on the policy.
    It was averred in the petition that the loss was occasioned by fire. By way of defense, the company set up the ninth condition of the policy, and averred that the loss was occasioned by fire resulting from the explosion of gas. For the second defense, the company averred that the preliminary proofs were not in compliance with the fifteenth condition of the policy, in that they showed the loss to be of a character that failed to show the company liable on the policy.
    Issue being taken upon the first defense, the case was tried to a jury, and a verdict was rendered in favor of the insured.
    The evidence tended to show that the loss occurred substantially as stated in the amended preliminary proofs. Some of the evidence was “admitted, subject to exceptions,” but no exception was in fact taken to any ruling of the court thereon.
    The court charged' the jury that the ninth condition of the policy exempted the company from the loss, if it was occasioned by fire resulting from an explosion of gas; but that, as the company admitted in its answer that the loss was occasioned by fire, the burden of proof was upon it to prove that it resulted from an explosion of gas. To the last part of this charge the company excepted.
    A motion for a new trial, on the ground that the verdict was against the law and the evidence, was overruled, and exceptions were taken. Judgment was rendered on the verdict.
    On petition in error to the District Court, the judgment of the Common Pleas was affirmed; and to reverse these judgments a petition in error is now prosecuted in this court.
    
      H. S. Sherman and George S. Kain, with whom were Moulton & Johnson, for plaintiff in error:
    I. There are two possible constructions that can be given to the ninth condition :
    1. That the company is not liable for damage by fire resulting from explosions caused by gunpowder, gas, or other explosive substances.
    2. That the company is not liable for damage by explosions caused by gunpowder, gas, etc., nor for damage by fire resulting from such explosions.
    The argument in favor of the first construction is, that this clause naturally depends upon and takes its meaning from the clause immediately preceding it — that this being a fire policy, the company would be exempt from liability for loss aside from fire, as a matter of law, without any exempting clause.
    The argument in favor of the second is, that the company having, in the clause of the condition just preceding the one under consideration, stated in reference to one kind of explosions, that of a steam-boiler, “that it will not be liable for damage occasioned by the explosion of a steam-boiler, nor for damage by fire resulting from such explosion,” {thus showing just what liabilities from explosions it meant to exempt itself from,) and having stated'it thus specifically as to the first kind of explosion mentioned, and then following in that immediate connection with, “ nor explosions caused by gunpowder, gas,” etc., intended to exempt itself from the same liabilities from the explosion of these articles, as from the steam-boiler first mentioned.
    Under either of these constructions, the company is not liable for damage by tire resulting from explosions of gunpowder, gas, etc. St. John v. Am. Mut. Ins. Co. (1 Duer, 379), 1 Kernan, 518; Montgomery v. Fireman’s Ins. Co., 16 B. Mon. 427; Roe v. Columbus Ins. Co., 17 Mo. 301; McAllister v. Tennessee M. & F. Ins. Co., 17 Mo. 306; Hayward v. Liverpool and London F. & L. Ins. Co., 7 Bosw. 385; The U. L. F. & M. Ins. Co. v. John T. Foote et al., 22 Ohio St. 340.
    In the ease last cited, the words in the condition were, “ any loss or damage;” in the case at bar, “damage.” But can this word “ damage” be so limited as to exclude fire damage — the chief, if not the only damage occasioned by the explosion of the substances named ? See Stanley v. Western Ins. Co., 3 Exch. 71.
    II. The preliminary proofs of loss were insufficient in law. The insured was bound to furnish preliminary proofs of loss sufficient to make a prima facie case against the company. Campbell v. Charter Oak F. & M. Ins. Co., 10 Allen, (Mass.) 213; Klein v. Franklin Ins. Co., 13 Penn. St. 247; Commonwealth Ins. Co. v. Sennet et al., 41 Penn. St. 161; Irving v. Excelsior Ins. Co., 1 Bosw. (N. Y.) 507; Catlin v. Springfield F. Ins. Co., 1 Sumn. (U. S. C. C.) 434; N. Y. C. Ins. Co. v. Watson, 23 Mich. 488.
    III. The court erred in admitting—
    1. That part of defendant’s testimony tending to show the different rates of premium charged upon difierent portions of the property insured, and the reasons for charging the same. (All testimony bearing on those points was admitted, subject to exception. Such testimony is immaterial to the issues being tried; the contract is clear and explicit, being in writing, and said testimony was not necessary to enable the court to properly interpret the same;, a portion of it was in writing, and if at all competent, the writing should have been produced, as being the best evidence; and the reasons given by defendant for charging different .rates of premium upon different portions of the property "were simply the expression of his opinion.
    
    2. That part of defendant’s testimony, showing what was done and said by Manchester, at the time of making the survey. Manchester was agent of Parker, and not of the company, and the company can not, in any manner, be-hound or affected by what he may have done in making the survey.
    IV. The motion for a new trial ought to have been sustained, because—
    1. The court erred in its charge to the jury as to a. waiver by the company of objection to the insufficiency of the preliminary proofs. The Little Miami R. R. Co. v. Wetmore. 19 Ohio St. 110. The burden lay upon the insured to prove that the loss was not covered by the exception in the policy. Catlin v. Springfield F. Ins. Co., 1 Sumn. 439; Delano v. Bartlett, 6 Cush. 367; Central Bridge Corporation v. Butler, 2 Gray, 130; Stanley v. Western Ins. Co., 3 Exch. 75; Babcock v. Montgomery Co. Mut. Ins. Co. 6 Barb. 640; Paddock v. Franklin Ins. Co., 11 Pick. 237; Treat v. Union Ins. Co., 56 Maine, 232; Marcey v. Sun Ins. Co., 14 La. An. 265; Stephenson v. Piscataqua Ins. Co., 54 Maine, 75
    2. The verdict is contrary to’the law and the evidence. The explosion of gas communicated the fire to the insured property, by which it was consumed. It was the effective cause. The fire under the still would have done no harm but for the explosion of the gas. Mut. Ins. Co. v. Tweed, 7 Wall. 44; Heyward v. London and Liverpool F. & L. Ins. Co., 7 Bosw. 385; General Ins. Co. v. Sherwood, 14 How. 363; Montoya v. London Assur. Co., 6 Exch. 451 Tilton v. Hamilton Ins. Co., 1 Bosw. 367; Brady v. Northwestern Ins. Co., 11 Mich. 425; Lewis v. Springfield Ins. Co., 10 Gray, 159; Strong v. Sun Ins. Co., 31 N. Y. 103; City F. Ins. Co. v. Corlies, 21 Wend. 367.
    V. Was there a waiver of the ninth condition by taking a risk in part upon “ oil in process of refining,” so as to-impliedly assume the risk of damage by fire caused by an. explosion of the gas evolved in the process of refining?
    
      In reply to this, we say:
    1. That this gas which is thrown off from oil in the process of distillation is no part of the property insured, having escaped from its confinement. It is of no value for any purpose, and'has not in any sense the character of property. Hence there can be no repugnance between the risk assumed, and the exemption contained in the ninth condition, of damage by fire caused by the explosion of gas. U. L. F. & M. Ins. Co v. Foote et al., 22 Ohio St. 340.
    2. That if this gas could be held to be property covered by the policy, the company would have a perfect right to contract that they should not be liable for loss or damage by fire caused by an explosion of it, and has done so. Hayward v. Liverpool and London Ins. Co., 40 N. Y. 458.
    3. If, at the time of taking the risk by the company they had no knowledge of the peril to the property from the explosion of this gas, it certainly can not be said that they waived the exception contained in the ninth condition. That if they did have knowledge of this peril, it is reasonable to suppose that they contracted in reference to it; and, had they intended to cover that peril, the policy would have so expressed it, or at least would have contained no exception that would exclude it.
    
      Canfield & Caskey, for defendant in error:
    1. The charge as to waiver was correct. 2 Phillips on Ins. (3 ed.) 492; Hartford Protection Ins. Co. v. Harmer, 2 Ohio St. 452; Bodle v. Chenango County Mutual Ins. Co., 2 Comst. 53.
    “ The denial of any liability on the part of the company, after notice of the loss, and after an examination of the property insured, waived the right to formal proof of loss.”' Black v. Exchange, etc., Ins. Co., 12 Gray, 535; Underhill v. Agawam Mut. Ins. Co., 6 Cush. 440; Peoria U. and T. Ins. Co. v. Lewis, 18 Ill. 553; Protection Ins. Co. v. Harmer, 2 Ohio St. 476. The defense made by the first answer was. upon the merits, and not upon the preliminary proofs.
    2. There was no error in admitting Dr. Parker’s testimony tending to show different rates of premium charged upon different parts of the refinery. When there is a repugnancy between the written and printed conditions of the policy, the written must prevail. See Hayward v. Northwestern Ins. Co., 19 Abbott’s Practice, 116; Benedict v. Ocean Ins. Co., 31 New York, 389; Goss v. Citizen’s Ins. Co., 18 La. An. 97.
    In this case the only risk of fire was from this vapor or gas. No fire about the receiving-house, and the ten per cent, premium charged on receiving-house, was on account of the gas generated there; and to properly construe this contract, it was necessary and proper that the court should be put into possession of these facts, for on these facts alone would the court have to rely, in connection with the written part of the policy, for its construction of the same. Globe Ins. Co. v. Boyle et al., 21 Ohio St. 119.
    4. The admission of this testimony did not in any manner change the rule relating to parol evidence affecting written instruments.
    The admission of this testimony is no ground of error, for it went in, subject to exceptions, by consent of counsel for the insurance company ; and after it was admitted and all in, the court must find from the record that the counsel for the insurance company were satisfied with it, and they made no motion or effort to have it taken from the court or jury.
    Again, this testimony was proper to explain what was meant by that part of the policy which reads, “ 1 year 10x4 per cent., $141.50.” Sheldon v. Connecticut Mutual Life Ins. Co., 25 Conn. 207; Thayer v. Leece et al., 22 Ohio St. 61.
    3. By “ insuring oil in the process of refining,” the company insured it against fire; and as it could not be burned without first igniting the gas or vapor around it, under a proper construction of the policy, Dr. Parker was insured against fire following am explosion of said'gas. The policy should be so construed as to give protection to the insured. Harper v. City Ins. Co., 1 Bos. 527; 22 New York, 441; Harper v. The Atlantic Mut. Ins Co., 1 Bosw. 194; Washington Mut. Ins. Co. v. The Mer. and Man. Ins. Co., 5 Ohio St. 450.
    
      Inasmuch as the insurance company especially provided against damage by fire resulting from explosions of steam-boilers, but did not provide against damage by fire resulting from the explosion of gas, it is liable for damage by fire, although caused by an explosion of gas, but not liable for damage resulting solely from the explosion of gas.
    And the cases cited by the insurance company do not change the authority laid down in Walter v. Louisville Ins. Co., 11 Peters, 213.
    
      Henry S. Sherman and George S. Kain, in reply:
    The only insufficiency in the proof which we claim, arises out of the statements contained therein as to the cause of the fire, and such insufficiency would not be waived by failure to point it out after the proofs were furnished by defendant, even were such the ease, provided the companies based their refusal to pay, solely upon the ground that the fire was caused in the very manner stated in the proofs.
    The authorities referred to in defendant’s brief are only applicable to irregularities, omissions, and defects of that character.
    The defendant, in his brief, claims that condition 9 in the policy was waived by taking this risk, and discusses it upon the unwarranted allegation that this insured property could not be damaged by fire without the fire being caused by an explosion of gas.
    There is nothing in the testimony on which to found such a statement; and' while fire, caused by an explosion of gas, may be one of the dangers to which the property was liable, it certainly was not the sole or chief one. This gas is only thrown off in the portion of the refinery known as the receiving-house, and then only at certain stages in the process of refining, and in quantities depending upon various causes — one of which, and perhaps the chief, is the want of care and skill in the refining of the oil. The insured property consisted largely of other buildings and articles in no way connected with the receiving-house, or liable to this danger from the explosion of gas; and the property could readily be consumed by fire not caused by an explosion of gas, and was of such a character that if once ignited, it would be very likely to result in a total loss; and the premium charged upon this property, considering its character, is a reasonable one, and no argument can be drawn from it that the ninth condition of the policy was waived.
   Day, J.

The determination of the controversy, in this case, depends chiefly upon the proper construction to be given to the ninth condition of the policy. In the body of the policy, the plaintiff below was insured against loss or damage by fire, on specified articles of property constituting an oil-refinery. An engine, and crude oil in process of refining, were included among the items insured. During the process of refining an explosive gas escapes from the oil.

The object of inserting the ninth condition in the policy, was to exempt the company from liability for certain losses insured against in the body of the policy. The condition is framed upon the evident theory that the company would be liable under the policy, not only for the loss of the insured property by fire, but for any damage it might sustain by reason of certain destructive forces proximately connected with fire, although the property should not be burned. "Whether the theory is well founded or not, it equally aids as in arriving at the intention and meaning of the language employed.

In regard to lightning, the two kinds of damage that may be occasioned thereby are recognized ; and the exemption from liability is confined to that arising only from the destructive force, where no fire ensues. Both kinds of damage that may arise from the explosion of a steam-boiler are recognized; and the exemption is made to apply to both the damages occasioned by the explosive force, and that by fire resulting from the explosion.

But the difficulty arises in determining whether both kinds of damage are embraced in the exemption from liability when caused by the explosion of “gunpowder, gas, or other explosive substance;” or, if not both, which one is included. The clause in question provides that the company will not be liable “ for damage occasioned by the explosion of 'a steam-boiler, nor for damage resulting from such explosion, nor explosions caused by gunpowder, gas, or other explosive substances.” The structure of the clause is unfortunate, if it was intended to include both kinds of damages in the exemption. If that was the purpose, the more natural expression would have been, that the company will not be liable “ for damages occasioned by the explosion of a steam-boiler, or explosions caused by gunpowder, gas,” etc., “ nor for damage by fire resulting from such explosions.” Indeed, the same end would perhaps have been attained, had the exemption in regard to fire resulting from an explosion been omitted. It is contended that the case of the Insurance Co. v. Foote, 22 O. S. 340, decided at the present term, warrants us in holding in this case, that the exemption from damage occasioned by the explosion of gas would have embraced that of fire resulting from the explosion. But the insertion of those words in the clause under consideration distinguishes this case from that; for, in the relation in which they stand in the sentence, they not only evince the idea of liability for two kinds of damage caused by explosions, but are applied to one kind of explosions only, thereby excluding their application to the other explosions mentioned; or that, as to explosions by gunpowder or gas, the exemption applies to but one of the kinds of damage that may result therefrom. It can hardly be supposed that it was the purpose to exempt the company from liability for fire resulting from the explosion of gunpowder or gas, while it remained liable for damage occasioned by an explosion where fire does not ensue. The more reasonable presumption would seem to be, that as gunpowder and gas, when ignited, like lightning or steam, are destructive forces, the purpose was to exempt the company from the kind of damage resulting from the explosive force merely. If this be not the true construction, as to some of the property, the policy was a practical nullity; for it appears that petroleum oil in process of refining could' never be destroyed by fire without being ignited by an explosion of the gas enveloping it while undergoing that process.

In Hare v. Horton, 5 B. & Ad. 715, upon a mortgage of dwelling-houses, foundries, and other premises, together jwith all-fixtures in the dwelling-houses — applying the maxim, expressio unius exelusio alterius — it was held, that, although, without these words, the fixtures in the foundries-would have passed, yet by them, the fixtures intended to pass were confined to those in the dwelling-houses. So, upon the same principle, in this case, although damage by fire might have been included in a general exemption from liability for damage occasioned by the explosion of a steam-boiler, or of gunpowder or gas, yet the exemption for such damage is expressly confined to that resulting from the explosion of a steam-boiler, and therefore excludes the application of the same exemption from loss by fire resulting from explosions caused by gunpowder or gas.

This is a fair and rational construction of the clause in-question, and we have no reason to suppose it does not accord with the understanding of the parties. If, however, the company which framed the policy intended this clause —hid away in one of its numerous conditions — to be interpreted differently, it is but reasonable that they should be held to the employment of language free from obscurity and doubt; and the company has no just reason to complain if a reasonable construction of the language it has used is adopted, though it be not the most favorable to the company. Insurance Co. v. Slaughter, 12 Wal. 404; Aurora Fire Ins. Co. v. Eddy, 49 Ill. 106.

This disposes of the case; for the whole defense was "based on a different construction of the policy, and all the questions made-in the case are resolved by the construction we have given to that instrument. Indeed, the plaintiff' "below was entitled to judgment upon the pleadings; for the loss by fire was admitted by the answer, and the defense interposed thereby was insufficient in law. The judgments of the courts below must therefore be affirmed.  