
    RELIANCE INS. CO. v. NAMAN.
    (No. 909—4979.)
    Commission of Appeals of Texas, Section B.
    May 23, 1928.
    1. Insurance <@=3421 — Loss within fire insurance contract must be by “hostile fire.”
    Loss within fire insurance contract must be by “hostile fire”; that is, one which becomes uncontrollable or breaks out from where it was intended to be and becomes a hostile element.
    [Ed. Note. — For other definitions, see Words and Phrases, Second Series, Hostile Eire.]
    2. Insurance <@=>421 — Fire in furnace or other usual place is “friendly fire,” not within fire insurance contract.
    Eire confined to a usual and ordinary place, such as a range, grate, or furnace, is usually denominated a “friendly fire,” which is not a fugitive one within fire insurance contract; it being contemplated that insured will have fire in such places.
    [Ed. Note. — Eor other definitions, see Words and Phrases, Friendly Fire.]
    3. Insurance <@=>421— Recovery for loss within fire insurance contract is not dependent on consumption or actual ignition.
    Recovery for loss within fire insurance contract is not dependent on consumption or even actual ignition, for direct loss may result from smoke, soot, or any other method directly due to fire.
    4. Insurance <@=>421 — Damage to jewelry by . “fire” in furnacei held not covered by fire policy.
    Damage to jewelry, inadvertently placed in furnace, by fire built therein, held not covered by fire insurance policy; word “fire” being employed therein as in common parlance, wherein one has not had a “fire” so long as it has burned only in place where it was intended to burn.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Fire.]
    5. Insurance <@=>421 — Damage to jewelry by fire in furnace held not covered by fire policy because not within printed exceptions to insurer’s liability; “exception.”
    Damage to jewelry by fire in furnace held not within fire insurance contract because not within any of numerous printed exceptions to insurer’s liability; “exception” being something taken out of instrument and of kind dealt with in contract, not something not within parties’ contemplation in first place.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Exception.]
    Certified Questions from Court of 'Civil Appeals of Tenth Supreme Judicial District.
    Action by W. W. Ñaman against the Reliance Insurance Company. Judgment for plaintiff, and defendant appealed to the Court of Civil Appeals, which certified a question to the Supreme Court.
    Question answered in the affirmative.
    Thompson, Knight, Baker & Harris and George S. Wright, all of Dallas, for appellant.
    Jas. P. Alexander, Harry Jones and Spell, Ñaman & Penland, all of Waco, for appellee.
   SPEER, J.

This cause is before us upon the following certificate from the Tenth District :

“This suit was filed by appellee against appellant to recover damages to certain jewelry caused by fire. It was alleged that said jewelry was insured under a policy issued by appellant to appellee, and while said policy was in full force and effect said jewelry was damaged by fire, and that appellant was legally liable for such damage. The appellant answered that the fire which damagecf said jewelry was not such a fire as was contemplated by the policy, and that there was no liability for said loss or damage by fire, for the reason that a servant of thq assured placed the jewelry, together with inflammable substances, in a furnace located in the assured’s residence, and that a fire which was purposely built in said furnace caused the loss and damage to said jewelry; that said furnace was constructed for containing fires therein built; that the fire which damaged the jewelry was contained solely within said furnace'; and that such damage was not one covered by the policy of insurance. The case was tried before the court without a jury upon an agreed statement of facts. The court rendered judgment against appellant for $2,584.15; the same being the agreed damage to said jewelry, together with 6 per cent, interest on same from June 3, 1926. Appellant duly perfected its appeal to this court, and said cause has been submitted to this court and is now under consideration.
“The question herein involved is one .of law only, and is a question of very great importance in the law of insurance, and the members of this court are very much in doubt as to how said question of law should be decided. The material parts of the agreed statement on which the cause was tried in the trial court are as follows: On January 19, 1926, the wife of ap-pellee placed the jewelry which was ordinarily used by her in a paper hat box in a clothes closet of said dwelling house described in said policy; that in said box there was some tissue paper; that the purpose of appellee’s wife in placing said jewelry in said hat box was for safe-keeping as a hiding place against burglars; that said jewelry remained in said hat box, with the intention of appellee’s wife of using the same from time to time, until January 23, 1926, on which date one of the servants employed in said dwelling house by appellee, while cleaning house, discovered the hat box in question, and, not knowing it contained the jewelry in question or anything else of value, but thinking the same contained only waste matter, handed said hat box to another servant who worked in the house, and directed her to throw it in the furnace in the basement as trash, and the servant who took said box, believing that it contained only waste paper or trash, threw it, with all of its contents, including said jewelry, into said •furnace of said dwelling house; that said furnace was used in heating said dwelling, and at the time said box was thrown into said furnace it contained sufficient fire to ignite and did ignite and destroy said box and damage the jewelry contained in said box to the amount of $2,-500; that at the time said box was thrown into said furnace neither of said servants knew that it contained said jewelry, or anything else of value; that the fire in the furnace, in its usual place and of a usual volume for heating purposes, damaged said articles while in said furnace in the sum of $2,500; that at the time of said damage said jewelry was covered by the policy sued upon. Notice of said loss was duly given, and appellant denied liability on June 3, 1928. In the trial court, as above stated, ap-pellee recovered $2,500, the agreed damage to said jewelry, together with 6 per cent, interest on same to June 8, 1926, the date on which appellant denied liability, making a total of $2,-584.15.
“The cause is presented to this court upon one proposition as follows:
“Where a servant of the assured under a policy-of fire insurance inadvertently placed jewelry in a furnace fire for heating the residence of the assured, and said jewelry was destroyed or damaged by a fire wholly confined to such furnace, such damage was due to a friendly fire, for which the insurance company is not liable.
“This proposition of law was the only one urged in the trial in the court below. The court overruled the same, and rendered judgment for appellee. This is the only question involved in this case. There is only one case in the United States that we have found or that is cited by either side that is at all similar in its facts, to wit, the case of Weiner v. St. Paul Fire & Marine Ins. Co., 124 Misc. Rep. 153, 207 N. Y. S. 279. However, we think this ease was poorly considered and of little value as authority, and we think is distinguishable from the case before this court. The only other case, which we think is nearer in point in its facts, is a French decision copied in 23 Irish Uaw Times & Solicitors’ Journal, March 30, 18S9, p. 169, styled Countess Fitz-James v. The Union Fire Insurance Company of Paris. Both of those cases are referred to in the briefs of both parties and copied in full in appellant’s brief. Many cases are cited both by appellee and appellant, but none similar to the case at bar. The policy made the basis of this suit insured appellee “against all direct loss or damage by fire,” with certain specified exceptions, but none of said exceptions cover the circumstances under which this fire occurred. We refer to and make a part of this certificate the agreed statement of facts, which includes the policy on’which the suit was based. By reason of the importance of the question of law involved, and because of the grave doubt among the members of this court as to how said question should be decided, we certify to the Supreme Court for its determination upon the agreed statement accompanying this certificate, the following question:
“First Question.
“Did the trial court err in holding that the appellant was liable for the damage to said jewelry?”

The policy having insured the appellee “against all direct loss or damage by fire,” it becomes important to determine whether or not the loss in this case has been sustained ■by “fire” within the meaning of that contract. It is uniformly held that the loss must be by a hostile fire; that is, one which becomes uncontrollable or breaks out from where it was intended to be, and becomes a hostile element. Weiner v. St. Paul, etc., Co., 124 Misc. Rep. 153, 207 N. Y. S. 279; Cannon v. Phœnix Ins. Co., 110 Ga. 563, 35 S. E. 775, 78 Am. St. Rep. 124; O’Connor v. Queen Ins. Co., 140 Wis. 388, 122 N. W. 1038, 1122, 25 D. R. A. (N. S.) 501, 133 Am. St. Rep. 1081, 17 Ann. Cas. 1118. And such fire must be the proximate cause of the loss. California, etc., Co. v. Union Compress Co., 133 S. Ct. 387, 10 S. Ct. 365, 33 D. Ed. 730; 26 C. J. p. 340, § 430.

The case of Weiner v. St. Paul, etc., Co., supra, is more nearly like this case than any to which we have been cited or have found. There the plaintiff’s wife, for the purpose of safe-keeping, placed her jewelry in a velvet handbag, and deposited it in the stove of the household. While the jewelry was in the stove she inadvertently caused a fire to be made in the stove, and the jewelry was damaged. In holding there was no liability, the Supreme Court of New York (a trial court in that state) said:

“We are of the opinion that the decision below was correct. Of course, mere negligence would not bar recovery, nor would willful in-cendiarism by some one other than the assured, and without his consent. Upon principle and authority, recovery may be had for loss eausfed by the spread of fire, or the result of heat, from a stove or fireplace. We are not required to pass upon what may, possibly, be the difficult question whether recovery could be had for the loss of something that fell, or was blown, into a stove or fireplace. We are of the opinion, however, that, as matter of common sense and human experience, it must be held that, unless a fire policy expressly includes such a cause, the parties to the policy cannot be said to have contemplated a loss by flame or heat wholly confined'to a stove used by the assured as a stove, where, as here, the property destroyed was placed in the stove, regardless of how or why it was so placed.”

The case was affirmed by the Appellate Division. 214 App. Div. 784, 210 N. Y. S. 935.

Countess Fitz-James v. Union, etc., Co., cited in the certificate, holds to the contrary, but its reasoning does not commend the decision to us, and it is not in line with the overwhelming weight of the authorities.

Where the fire which occasions the damage is confined to the usual and ordinary place, such as the range, grate, or furnace, it is Usually denominated a friendly fire, and as such not a fugitive one within the contemplation of the contract of insurance. Weiner v. St. Paul, etc., Co., 124 Misc. Rep. 153, 207 N. Y. S. 279; Id. 214 App. Div. 784, 210 N. Y. S. 935; Austin v. Drew, 4 Camp. 361; Cannon v. Phœnix, etc., Co., 110 Ga. 563, 35 S. E. 775, 78 Am. St. Rep. 124; Gibbons v. German, etc., Co., 30 Ill. App. 263; Fitzgerald v. German, etc., Co., 30 Misc. Rep. 72, 62 N. Y. S. 824; Samuels v. Continental, etc., Co., 2 Pa. Dist. R. 397; American, etc., Co. v. German, etc., Co., 74 Md. 25, 21 A. 553; O’Connor v. Queen, etc., Co., 140 Wis. 388, 122 N. W. 1038, 1122, 25 L. R. A. (N. S.) 501, 133 Am. St. Rep. 1081, 17 Ann. Cas. 1118; Wood, Ins. (2d Ed.) § 103; May, Ins. p. 929. For it is of course contemplated always that the owner will have fire in these places.

[3] Where a loss does come within the contract, the recovery is not dependent upon consumición, or even actual ignition, for a direct loss may otherwise result. The damage may be caused by smolie and soot (Collins v. Delaware Insurance Co. of Philadelphia, 9 Pa. Super. Ct. 576; O’Connor v. Queen Ins. Co., 140 Wis. 388, 122 N. W. 1038, 1122, 25 L. R. A. [N. S.] 501, 133 Am. St. Rep. 1081, 17 Ann. Cas. 1118); by heat (Cannon v. Phoenix, etc., Co., 110 Ga. 563, 35 S. E. 775, 78 Am. St. Rep. 124) ; by water (Geisek v. Crescent Mut. Ins. Co., 19 La. Ann. 297; Lewis v. Springfield, etc., Co., 10 Gray [Mass.] 159; Cohn v. National Insurance Co., 96 Mo. App. 315, 70 S. W. 259); by fall of building (Lewis v. Springfield, etc., Co., 10 Gray [Mass.] 159); by explosion (Waters v. Merchants’, etc., Co., 11 Pet. 213, 9 L. Ed. 691); by theft as a result of the fire (Queen, etc., Co. v. Patterson, 73 Fla. 665, 74 So. 807, L. R. A. 1917D, 1091; Tilton v. Hamilton, etc., Co., 14 How. Prac. (N. Y.) 363; Newmark v. Liverpool, etc., Co., 30 Mo. 160, 77 Am. Dec. 608); or by any other method directly due to the fire.

The contract of insurance contemplates that the insurer will pay to the insured the damages for all direct loss proximately caused by fire within the meaning of the policy. A friendly fire is not within, the undertaking of the insurance company at all. If it were, the company would be liable, as in a case of unfriendly fire, for all direct loss or damage, irrespective of destruction or of actual ignition, and the. fact that in thiscase there was an actual consumption of the insured property is of no importance in determining the liability of the insurance company. If the fire in the furnace was such a fife as the company insured against, then it would be liable for any direct loss or damage therefrom, and it would follow the insured could recover his damage for loss occasioned by the cracking of the plaster in the furnace basement from the heat of the furnace, for the cracking of the paper on the walls from the heat of the grate, and for damage to the decoration and draperies through smoke and soot from the furnace or chimney place, and even for -the replacement of furnace, grate, and range oven when burned out, for those clearly -would be losses directly due to the respective fires. Those are not extreme illustrations, but liability in each instance would follow if the fire in this case be held to be within the policy. In the sense in which the word “fire” is used in the policy, there has been.no fire so long as it is kept within the proper and accustomed place. In common parlance one has not had “a fire” so long as it has only burned in the place where it was intended to burn, and the sense in which that word is used in common parlance accurately indicates the sense in which it is employed in a fire insurance policy.

The point is made by appellee. that there are numerous exceptions to the liability of the insurance company printed in, the policy, and the argument follows that this loss not falling within one of the exceptions is therefore within the contract. This by no means follows. ' In the very nature of an’ exception it is something taken out of thd Instrument, whether statute, grant, or contract, and is of a kind dealt with in the contract. Where the matter -being considered is not within the contemplation; of the parties to the contract in the first place, there is no need of an exception, and, since as we think the fire in this case was without the contract of insurance, the failure to except it cannot, bring it within.

We recommend that the question certified be answered in the affirmative. t ■

CURETON, O. J.

The opinion of the Commission of Appeals answering--the certified question is adopted and ordered certified. 
      <@=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     