
    KEE KAN, NG LAI, NG YEE, KONG YEE, KONG LUNG, LOY HOCK LOCK and CHEN WAI, copartners doing business under the firm name of KWONG LEE YUEN & CO., v. THE MANCHESTER FIRE ASSURANCE COMPANY.
    EXCEPTIONS FROM CIRCUIT COURT, FIRST CIRCUIT.
    Submitted April 2, 1904.
    Decided June 4, 1904.
    Frear, C. J., Galbraith and Perry, JJ.
    The Board of Health ordered the Fire Department to destroy by fire, because of infection by bubonic plague, the buildings within a certain described area. The engineer of the department before burning the condemned buildings set fire to three buildings in clore proximity to but outside of the area named, from which three buildings the fire accidentally spread until it reached and destroyed property insured by the defendant. The policy provided that the-insurer should not be liable for “loss caused directly or indirectlv * * * by order of any civil authority.” Held, that if the burning of the three buildings was necessary or was reasonably believed to be necessary to prevent the spread of the fire from the condemned block to the remainder of the city and if the fire was set for that purpose, the order of the Board of Health was the proximate cause of the loss of the insured property, within the meaning of the exception, and the insurer is not liable .
   OPINION OF THE COURT BY

PERRY, J.

Assumpsit for $750 on a contract of fire insurance. Tbe buildings insured were situate on Maunakea street, between Hotel and Ring, and were destroyed in tbe conflagration of January 20, 1900. Tbe defense was that the loss was caused directly or indirectly by order of a civil authority, an excepted cause, and in support of that defense evidence was introduced tending to show that the fire which destroyed the plaintiffs’ buildings spread from a fire started by order of the Board of Health of the Bepublic of Hawaii in that portion of Block 15 bounded by Kukui, Nuu'anu and Beretania streets and the easterly side of the Kaumakapili Church premises and a line in continuation thereof to Kukui street. In rebuttal the plaintiffs adduced evidence tending to show that the fire had been started by the Chief Engineer of the Fire Department, or by his order, in a building, numbered 41 on a map of the locality in evidence, without the boundaries of the section ordered burned and that from that building or from two other buildings, numbered respectively 48 and 45 and also without the boundaries referred to, the fire spread to a steeple of the Kaumakapili Church and thence from building to building until it reached the plaintiffs’ property. On motion the presiding judge directed a verdict for the plaintiffs on the ground that the loss was shown, not to have been from an excepted cause. The main question before us is as to the correctness of this instruction.

The provision of the policy relied upon by the defendant is that “this company shall not be liable for loss caused directly or indirectly * * * by order of any civil authority.” On January 19, 1900, the president of the Board of Health addressed to Andrew Brown, Eire Commissioner, the following communication : “You are hereby authorized by resolution of the Board 'of Health to destroy by fire all the structures within the limits of the area described as follows:” (description substantially as above) “all of these structures inclosed in the above boundaries having been condemned by the board as infected by plague and ordered destroyed by fire”. The resolution referred to had been duly passed by the Board. The buildings within the designated area were all, or nearly all, destroyed by fire on January 20, 1900. If the fire within that area passed from building to building, unaided by any efficient, intervening cause, to the insured property, then the order of the Board of Health was the proximate cause of tbe loss of tbe plaintiffs’ buildings. Hawaii Land Co. v. Ins. Co., 13 Haw. 164. Wbetber tbe evidence at tbe trial was sucb as not to permit of a finding that tbe fire did so spread from that area, it is unnecessary to say. Tbe evidence did permit of and would bave amply supported a finding tbat while tbe chief engineer started tbe fire in No. 47 and also set fire to Nos. 48 and 45 before setting fire to any of tbe buildings within tbe area, be did so for the purpose of creating a gap between tbat area and tbe rest of the town lying to tbe west and thus protecting tbe rest of tbe town from tbe fire which be bad been ordered to start and which be knew be would start immediately after-wards. The chief engineer is dead 'and was unable to testify himself as to tbe reasons which led him to start tbe fire where be did, but tbe evidence as to tbe careful disposition made by him beforehand of tbe engines and other apparatus of tbe department and other evidence in tbe case would clearly support tbe finding tbat bis sole purpose was- to carry out tbe order of tbe Board of Health with as little loss and danger as possible to tbe portions of tbe town not ordered destroyed.

If tbe chief engineer set fire to Nos. 47, 48 and 45, not in tbe execution of tbe order received, but to gratify ill will or hatred on bis part .against the owners oí those buildings, then tbe fire .so set or bis act was an efficient intervening cause breaking tbe chain of connection between tbe order and tbe loss and tbe order would not be regarded in law as tbe cause of tbe loss. But, in our opinion, tbe authority to burn tbe designated area (tbat tbe Board of Health bad color of authority to destroy condemned buildings by fire sufficient to constitute it a civil authority within the meaning of the policy, see Haw. Land Co. v. Ins. Co., supra) carried with it to tbe same extent tbe authority to do all acts reasonably necessary to execute tbe order or request and at tbe samé time to protect to tbe greatest possible degree from a spread of tbe fire tbe remainder of tbe town; and if tbe burning of Nos. 47, 48 and 45 was reasonably necessary for those purposes or was reasonably supposed by tbe chief engineer, in good faith, to be necessary, tbe order of tbe Board of Health was the direct and proximate cause of the burning of those three buildings and, by means of the chain thus established, the direct and proximate cause of the loss of the plaintiffs’ building. That the engineer committed, if he did, an error of judgment as to the necessity for the preliminary burning, cannot break the chain of causation so far as this case is concerned, whatever the rule might be in an action by the owners against the engineer. Such error of judgment could not of itself constitute an efficient intervening cause or render the act of the engineer such.

Hatch & Ballou for plaintiffs.

Robertson & Wilder for defendants.

The mere fact that the fire was started without the boundaries described could not of itself render the act of the person setting it an efficient, intervening cause. Eor example, if a small pile of wood had been made just without the line and against one of the buildings within the area and set on fire for the purpose of thus communicating the fire to the buildings within and from the heap of wood the, fire had spread to the plaintiffs’ buildings, could it be successfully denied that the order of the Board was the proximate cause of the loss ? We think not. So also if in the place of buildings 47, 48 and 45 three heaps of tree trimmings or other rubbish had stood, and these had been deemed a menace, if allowed to remain, as a means of spreading the fire about to be started to the portion of the city to the west and had been for that reason burned, and the fire had spread therefrom to plaintiffs’ buildings, would not the order of the Board be the proximate cause of the loss ? We think it would.

What the result would be if numbers 47, 48 and 45 were burned by mistake, on the supposition that they were within the designated area it is unnecessary to say at this time. In accordance with the foregoing views the evidence permitted of a verdict for the defendant and for that reason the direction to find for the plaintiffs was erroneous. The other exceptions need not be considered. The verdict is set aside and a new trial ordered.

CONCURRING OPINION OF

FREAR, C.J.

I will add a little to the foregoing. As pointed ont in Hawaii Land Co. v. Lion F. Ins. Co., 13 Haw. 164, the proximate cause cannot be determined solely by abstract or scientific reasoning on causal relations or solely by reasoning by analogy from 'the law of torts. This is an action of contract and what is the proximate cause depends on the intention of the parties as shown by the contract construed in the light of circumstances and it is a matter of considerable importance what the cause insured against is 'and what the excepted cause is. It is immaterial within certain limits whether the order of the board of health was strictly legal or not or whether, if the board or the Territory were suable in tort, they would he liable to any of the parties injured. It is also immaterial for the purposes of this case whether the property first set on fire without the condemned area consisted of valuable buildings of innocent third parties or of mere heaps of rubbish. In cases of this kind the first of two alleged causes may be the proximate cause although there is no physical connection between the two and the second is set in motion merely to prevent the anticipated consequences of the operation of the first. Eor instance, in Insurance Co. v. Boon, 95 U. S. 117, in which the risk was fire and the exception invasion or usurped power (not merely directly or indirectly by invasion but “by means of” invasion), the rebel forces were attacking the city when the commander of the Union forces ordered an officer to destroy the military stores to prevent them from falling into the hands of the enemy. The officer destroyed them by setting fire to the city hall in which they were stored and the fire spread from one building to another until the insured building was burned — all before the enemy entered the city. It was held that. the invasion, not the order of the commander, nor the act of the officer in destroying by burning rather than in some other way, was the proximate cause and that the loss therefore was within the exception and the insurance company not liable. See also cases cited in that case. In one of them, in which the captain burned bis ship to prevent her capture by the public enemy, it was held that the fire was caused by the enemy. If it had been caused by the captain, there could have been no recovery. Similarly, where a captain threw overboard a quantity of¿ money to prevent its falling into the hands of the enemy. In such cases the immediate act or cause is regarded as done or occasioned ex justa causa and the more remote is considered as the causa cau-sans which set in motion the agency that contributed to the destruction or which created the necessity for the immediate act or cause.

In the present case we must assume as a fact that in pursuance of the order of the board the buildings in the condemned area were to be burned and 'also that they were to be burned at that time. If that required the burning of the three outside buildings in order to prevent the spread of the fire -to another section of the city, the order was the proximate cause of such burning, if such burning vras for that nurpose. That of course would be true if the outside buildings were burned for that purpose after instead of before the condemned buildings were set on fire. They could be burned before as well as after for that purpose. That is, assuming that the fire department would have acted under the order of the board if it had burned the condemned buildings at that time without first burning the outside buildings and that such outside buildings and another section of the city would probably have been burned by the spread of the fire, the order of the board could be considered the proximate cause of the burning of the outside buildings if they were burned separately either before or after the firing of the condemned buildings in order to prevent such spread of fire. Thus it cannot be said as matter of law that the burning of the outside buildings by the fire department was an intervening independent self-operating efficient cause and it was error to direct a verdict on that theory.

CONCURRING OPINION OF

GALBRAITH, J.

I concur in the order sustaining the exception to the direction of the verdict for the reason that, in my opinion, there was sufficient evidence to support a verdict for the defendant; hence taking the case from the jury and directing a verdict for the plaintiff was error.  