
    Charles St. John, and others, v. The American Mutual F. & M. Insurance Company.
    (Before Oakley, Ch. J., Paine and Bosworth, J.J.)
    Nov. 19;
    Dec. 11, 1852.
    When it is provided by the conditions annexed to a policy of insurance against fire, that the company shall 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,” although fire may be the proximate cause of the loss that is claimed, the company is not liable, when it appears that the fire was directly and wholly occasioned by an explosion.
    The exception meant to be created, if otherwise construed, would be senseless and nugatory, since the company, under the general words of the policy, could never be made responsible for a loss occasioned Wholly by an explosion, without any immediate action of fire upon the property insured.
    When “ fire ” is the only risk insured against, an insurance company can only be liable, when “fire” is the proximate cause of the loss, and the object of the conditions annexed to the policy is tp create exceptions from this liability.
    When a loss by fire is proved which ip pot excepted, it is no defence to the company that the fire was occasioned by the fault or neglect, without fraud, of the assured'ur his servants.
    Judgment for the plaintiffs reversed, and new trial granted.
    Appeal by the defendants from a judgment in favor of the plaintiffs for $2,280 82 damages and costs.
    The action was on a, policy of insurance against fire, and was tried before the Ohief Justice and a jury in June, 1851.
    It appeared by the policy produced on the trial, that the defendants -insured the plaintiffs to the amount of $2000, “ against loss or damage by fire, on their machinery and fixtures, including shafting and fixtures for communicating power contained in the brick building, Nos. 5 & 7 Hague street, city of New York, occupied for mechanical purposes, and also on lathes and tools for making machinery, contained in the said building.” The loss claimed was fop the destruction by fire of the property thus insured.
    The printed conditions annexed to the policy contained this provision: “If, after insurance effected, the risk shall be increased by any means whatever within the control of the assured, or if such building or premises shall be occupied in any way so as to render the risk more hazardous than at the time of insuring, such insurance shall be void and of no effect,” and also 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 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 the policy.”
    In an affidavit made by the plaintiffs, which formed a part of the preliminary proofs exhibited to the defendants, and as such was read upon the trial, the fire occasioning the loss was described as follows:—
    
      “ That said fire originated on the fourth day of February, 1850, and was immediately preceded by the explosion of a steam boiler upon the said premises, when the walls of the said building (Kos. 5 & 7 Hague street) were mostly thrown down, and the fire which was used in the furnace of the said boiler, and in stoves in various parts of the building, was communicated to the frame and woodwork of the building,- and the materials and machinery contained therein,” and this account of the origin and effects of the fire was proved to be correct by the testimony of witnesses examined in chief.
    On the part of the defendants several witnesses were examined to prove that the explosion of the boiler was imputable to gross negligence on the part of the plaintiffs. It was proved that the probable cause of the explosion was an undue pressure of steam upon the boiler, and that one of the plaintiffs, A. B. Taylor, had been warned by a person of skill and experience, that from the weight of steam under which he was working the engine there was great hazard of an explosion. It was insisted that the conduct of the plaintiffs amounted to an increase of the risk which rendered, void the insurance.
    It is deemed unnecessary to state in detail, the testimony of the witnesses on the trial, since the decision of the court upon the appeal turned exclusively upon the construction of the policy, and the conditions annexed, and upon the propriety of the charge of the judge upon the question of negligence. When the plaintiffs rested, the counsel for the defendants moved for a non suit, upon the ground that the loss proved was excepted from the policy. The motion was denied, and the counsel excepted.
    When the testimony was closed, the counsel for the defendants requested the judge to charge the jury as follows:—
    That if putting in the boiler in question, and putting on lOOlbs. of steam to the square inch, increased the risk after the insurance was effected, then the defendants were entitled to a verdict, whether the plaintiff, Taylor, was or was not negligent.
    That the building being destroyed by the explosion, and the insured property being affected as it was thereby, the defendants were not liable, because when the fire reached the property, the property was not in the building in which it was insured, and was not the property insured.
    That if the jury believed from the testimony that the boilers would not bear the pressure of 100 lbs. to the square inch, and that Taylor was so informed, and had notice, and had reason to believe, and notwithstanding ordered that amount of pressure put on the boilers, and the explosion and fire were caused thereby, it is such negligence as exonerates the defendants.
    The judge then charged the jury as follows:
    That the question whether the explosion was caused by an undue pressure of steam or by a deficiency of water, was one which the jury must determine upon the testimony before them. That ordinary negligence on the part of Taylor, would not constitute a defence in this action. But if the insured acted.', in bad faith, with a design to occasion the loss, or with such'/ ’ negligence as showed a willingness to have the loss occur, or a ¡ recklessness, or an indifference whether the course pursued by ; him should occasion the” fire or not, then the plaintiffs were not,,, entitled to recover, and this was matter of fact to be determined^ by the jury.
    The judge also charged, that any change by the insured in the condition of the building, or the mode of occupancy, so as to change the hazard to one of a higher class than that insured against, would constitute a defence, but that such change in the occupancy as did not increase the hazard to a higher class, or change the nature or character of the hazard materially, would not constitute a defence. He did not consider that aj greater or less amount of pressure upon the boiler, unless it amounted to evidence of the bad faith or indifference to conse-l quences already stated, would constitute a valid defence in law; a mere error of judgment on the part of the insured, as to the amount of stbaffi” the boiler was capable of carrying, did not take away his right to recover.
    The judge also changed, that the propeity insured, notwithstanding the destruction of the building by the same accident, -or at the same time with the occurrence of the fire, was protected by the policy; that nevertheless it continued to be the property insured, and covered by the policy in contemplation of law.
    The judge refused to charge the aforesaid propositions of the defendants’ counsel, or either of them, otherwise than as contained in the charge above set forth.
    The defendants’ counsel then and there excepted to such refusal, and each part of it; and he also excepted to the said charge, and to each part and portion of the same separately.
    The jury found a verdict for the plaintiffs, for the amount of their claim and interest.
    
      C. P. Kirkland, for the defendants,
    in moving for a new-trial upon the exceptions, relied upon the following points and authorities:
    1. The conditions annexed to a policy form part and parcel of it, as much as if they were inserted in the body of the policy itself. (6 Wend. 494; 2 Den. 78; 2 Comst. 220; 12 Wend. 456.)
    H. The defendants are not -liable for the loss in this case. 1. By the conditions of the policy, the defendants are not to be liable for “ any loss occasioned by the explosion of a steam boiler.”
    All contracts are to be so construed, if possible, as to give effect and meaning to all the words used in them. How the subject insured against here is fire, and fire only, and to provide that the defendants should not be liable for loss occasioned by the breaking or marring of the property by the concussion arising from a steam boiler explosion,, would be supererogatory and unmeaning, for the plain reason that no such loss is insured against. These words can have effect and meaning only by holding them to mean that the defendants are not to be liable for a loss by fire directly or immediately caused by the “ explosion.” 2. The proof is clear and undisputed that the “ explosion” was the direct and immediate means of communicating the fire to the insured property, and that had there been no “ explosion,” there would have been no “ loss.” 3. The “ loss” therefore was “ occasioned” by the “ explosion,” and is therefore directly within the exception of the policy. 4. At any rate, the words are as comprehensive as language can make them—“ ahy loss”—and this necessarily includes the “ loss” in question, “ occasioned” as it confessedly was by the “ explosion.”
    III. The conditions provide, that if after an insurance the risk is increased by any means within the control of the insured, the insurance shall be void. There is evidence showing, or tending to show, that the putting in the boiler in question, and putting on to it the pressure of steam stated by some of the witnesses, increased the risk.
    The judge should therefore have charged as requested by the defendants.
    The remarks of the judge on this branch of the case did not meet- the case as proved, and did not present the point as the defendants were entitled to have it presented.
    IY. There is evidence showing, or tending to show, 1. That the boiler would not bear a pressure of 100 pounds to the square inch. 2. That Taylor had full notice and knowledge of this fact. 3. That nevertheless, he caused that amount of pressure to be put on. 4. That this excessive pressure caused the explosion. 5. That the explosion was the immediate and sole cause of fire doing injury to the insured property. The defendants were thus entitled to ask the judge to charge as stated; and the judge erred in charging generally, as he did, instead of specifically, as he was requested; and the charge was calculated to mislead.
    Though, as a general rule, the negligence of the insured is not a defence, yet the facts in this case, if the jury believed the defendants’ witnesses, constituted a defence.
    And as applicable to this case, the rule is too broadly stated by the judge. (1 Strobt. S. Car. R. 281.)
    
      A. L. Jordan and F. B. Cutting, for the plaintiffs,
    resisted the motion for a new trial, upon the following grounds—'
    I. The execution of the policy, and occurrence of the fire and loss, were duly proved, and the notice of the loss and other preliminary proofs, were produced in due form and read without objection.
    H. The judge properly refused to nonsuit the plaintiff on the motion of defendants’ counsel. 1. The question of fraud or negligence was not involved in that motion. 2. The question was simply whether the policy covered all losses immediately by fire, except in the excepted cases. 3. That it did is quite clear from the body of the policy. There is a plain distinction between a loss by fire, and a loss by means which may or does occasion fire: Lightning may strike the property into atoms and destroy it, so may the explosion of a steam hoiler. So lightning or the explosion of a boiler may occasion a fire which consumes the property, the loss by the violence is not covered by the insurance against loss by the fire. (Montgomery Mut. Ins. Co. v. Babcock, 6 Barbour Sup. Court Rep. 637, affirmed by Court of Appeals; Citizens’ Ins. Co. v. Glasgow, 9 Mo. Rep., cited in U. S. Dig. of 1848, p. 227, Com. Rep.) Mor would insurance against loss by the violence cover a loss by the fire. The contract looks to the proximate or immediate cause of the destruction, not the mediate or remote cause. In the case either of lightning or explosion, if the property survive the violence, which it may do unhurt, and then a fire comes on and consumes it, it makes no difference what occasioned the fire so it be not fraud, which vitiates every transaction. Suppose the condition of a fire policy should declare—“This company will not be responsible for loss by wind,” and the property should be destroyed by fire driven by wind from a neighboring conflagration ;. would that be a loss by wind, or a loss by fire ? Would - the loss by the remote or that by the proximate cause be intended by law to be that within the contemplation of the contracting parties. Insuring against wind is insuring against the ordinary effects of wind, blowing down,' or blowing away; against explosion, the ordinary effects of explosion, breaking, or crushing. Why then (it may be asked on the other side) if insuring against the fire, the proximate cause, was not insuring against the explosion, the remote cause, was the exception of. explosion introduced at all ? I answer, by way of caution, to prevent any cavil upon the point whether the fire which raised the steam, which exploded the boiler, which broke the .machinery, did not occasion the loss within the meaning of the policy: for points as absurd even as that sometimes present themselves to minds unacquainted with legal reason. It was a useless exception, in view of the legal principle, but was a harmless one; introducing it was the act of the defendants, and the plaintiffs are not called on to defend the propriety of it. It was in the nature of a declaratory contract, and neither a declaratory contract nor a declaratory statute does any harm or any good, except to make the law more plain, or bring it more, clearly within the comprehension of the parties.
    IH. Kegligence on the part of the plaintiffs or their servants is no defence to the action, unless of so gross and reckless a character as to afford evidence of bad faith or fraud, or indifference to consequences. The charge in that respect was right.
    TV". The question of such negligence was fairly submitted to the jury and negatived by the verdict; the evidence well warranted the finding, and will not be disturbed by the court.
    Y. Any change in the occupancy of the building which did not increase the hazard to a higher class, or change the nature or character of the hazard materially, such as the substituting one boiler for another,- or carrying a little more or less steam, did not constitute a defence. The charge therefore in this respect was right.
    YI. Although the building was thrown down by violence, the property, not having been removed, was still in the building and remained the property insured, within the true intent and meaning of the policy. The charge in this respect was also right.
    YU. The judge submitted it to the jury whether the 100 lbs. of steam put upon the boiler, in connexion with the other facts of the case, amounted to evidence of bad faith or indifference to consequences on the part of the plaintiff: but charged that mere error in judgment in that respect did not take away his right of recovery. This fairly and correctly covered the whole ground embraced in the last request of defendants’ counsel to the judge in charging, and was correct in point of law.
    VHI. The exception to the judge’s charge was too broad, and is of no force unless every portion of the charge was wrong. (Jones v. Osgood, Court of Appeals, March Term, 1852.)
   By the Court. Bosworth, J.

The defendant, by the policy of insurance on which this action is brought, agreed to make good unto the plaintiffs all such immediate loss or damage, as should happen by lire, on their machinery and fixtures in the brick building, situate Eos. 5 & 7 Hague street, in the city of Hew York.

The policy (in the body of it) provides that the company shall not be liable for any loss or damage by fire, which may happen or take place by means of any invasion, insurrection, riot, or civil commotion, or of any military, or usurped power.

Certain conditions were annexed to and made part of the policy, by one of which it is provided and declared that, 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, 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 preliminary proofs of the loss, signed and sworn to by ' the plaintiffs, state that a fire occurred in the building Hos. 5 & 7 Hague street, on the 4th of February, 1850. That the fire “ was immediately preceded by the explosion of a steam-boiler on 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 said building, was communicated to the frame and woodwork of said building, and the materials and machinery contained therein. That the foregoing is a correct statement of the manner in which the said fire originated, so far as the assured know or believe or have any information.”

William M. Tweed, a witness on the part of the plaintiffs, testified that he was assistant foreman of engine company Ho. 6, that he resided directly in rear of the premises, and that his bed-room window looked right into the building. That he was dressing, when he heard a report like a gun, and looking towards the building, he saw it sinking and a cloud of dust rising. Saw the flame break out before he left the house. The building was a large double one, and became a perfect wreck within a minute. The first fire he saw was near the extreme end; it was rising through the rubbish of the building, a rising flame coming up through the beams of the second story. The fire burned briskly from the time it broke out, being between 7 and 8 in the morning, until 4 p. m., and continued until 6 the next morning.

When the plaintiffs rested, the defendants’ counsel moved for a nonsuit, “ on the ground that it was manifest from the plaintiffs’ testimony, that the insured property was brought into contact with the fire solely by means of the explosion of the boiler, and that then the loss or injury, 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 a loss so occasioned.”

The motion for a nonsuit was overruled, and the decision was duly excepted to. The main question arising on the appeal involves the proper construction of the clause, in the conditions annexed to the policy, which declares that this company will not be liable “ for any loss- occasioned by the explosion of a steam-boiler.”

Was the loss in this ease occasioned by the explosion of a steam-boiler, according to the natural and obvious meaning of those words, as used in this policy?

Unless this clause will exempt the defendant from all loss or damage by fire which may be caused directly and immediately by the explosion of a steam-boiler, it is wholly nugatory.

All kinds of loss resulting from the explosion of a steam-boiler not producing fire, nor bringing the injured property and fire in contact, must necessarily have been borne by the plaintiffs, even if no part of this clause had been contained in the policy. The insurance is only against loss and damage by fire. If there had been no fire, and the insured property had been utterly destroyed by the explosion, no recovery could have been had against the company, even if this clause had been omitted, for the simple reason, that only loss or damage by fire was insured against.

It cannot be supposed that the clause was introduced to. guard against a liability which- could not by any possibility arise, but to guard against one which might arise but for the existence of this provision. The only one which could arise from the explosion of a steam-boiler, would be for an im- - mediate loss or damage by fire occasioned or communicated by such explosion. '

The policy, after providing that the company will not be liable for any loss or damage by fire happening by means of any invasion, &c., adds that they will not be liable “ for any loss occasioned by the explosion of a steam-boiler.” The most comprehensive terms are here used. And if this loss was occasioned by the explosion, it would seem to be covered by the clause, whether the loss resulted from fire being directly communicated to the injured property, or from its being crushed into worthless fragments.

A loss of the former nature was the only one which the company had any occasion to guard against. We think they have done this by the clause in question.

The preliminary proofs and other evidence show that the explosion communicated the fire in the furnace and stoves directly and instantaneously to the insured property. So far as loss and damage by fire resulted from a burning of the insured, property, it was occasioned solely, immediately, and exclusively by the explosion. The explosion and setting on fire of the insured property were simultaneous, and the former caused the latter. It was the actual and immediate cause of the loss.

In Waters v. The Merchants' Louisville Insurance Company, 11 Pet. R. 213, 225, the court observed that, “ some suggestion was made at the bar, whether the explosion, as stated in the pleas, was a loss by fire, or by explosion merely. We are of the opinion, that as the explosion was caused by the fire, the latter was the proximate cause of the loss.”

The opinion there expressed was, that as the fire caused the explosion, the loss was caused by the fire. In this case the explosion threw the fire among the insured property, and immediately set it on fire. The loss produced by burning was therefore occasioned by the explosion. The burning of the property was a direct and inevitable result of the explosion, and not a remote consequence of it.

We are of the opinion, that the loss or damage resulting from a burning of the insured property was occasioned, in this case, “by the explosion of a steam-boiler,” according to the obvious and proper meaning of those words, as used in this policy, and that the plaintiffs ought tp have been nonsuited.

If this view of the case be "correct, it is unnecessary to express an opinion upon the exceptions taken to the charge at the trial, and to the refusal of the court to charge as requested by the defendants’ counsel.

We think, however, that they are not well taken. In the Columbia Insurance Company of Alexandria v. Lawrence, 10 Peters, 517, 518, the court, after discussing the question, expressed the opinion “ that a loss by fire occasioned by the mere fault and negligence of the assured, or his servants or agents, and without fraud or design, is a loss within the policy, upon the general ground that the fire is the proximate cause of the loss, and also upon the ground that the express exceptions in policies against fire, leave this within the scope of the general terms of such policies.”

We consider this the correct rule, and that the defendant has no cause to complain of the instructions of the court in relation to the branch of the case to which this rule was applicable.

The verdict must be set aside and a new trial granted on the grounds, that the plaintiff should have been nonsuited, and that the evidence subsequently given in relation to the cause of the loss, did not vary the case from that established by the proofs which had been made when the plaintiff rested.

Costs should abide the event. : "k  