Page images
PDF
EPUB

Exception.- In Canada it has been held that fire from a match causing an explosion of gunpowder is a fire within meaning of the policy.

Hobb v. Guardian Ins. Co., 12 Duval, 631.

RULE 6.

Explosion Caused by Lightning.

Where policy insures against loss or damage caused by lightning “subject in all other respects to the terms and conditions of the policy,” and powder stored in a building seventy-one feet distant from one insured is struck by lightning, causing an explosion which destroys the latter, the loss is caused by explosion not included in the risk.

German Ins. Co. v. Roost, 55 Ohio St. 581, 45 N. E. Rep. 1097, 26 Ins. L. J. 699.

PULE 7.

Loss Caused by Lightning -- Rule as Imposed by Contract.

The insurance company is not liable for a loss caused by lightning, unless fire ensues, and in that event, for the damage by fire only; but liability for direct damage by lightning may be assumed by specific agreement on the policy.

This rule is imposed by above terms in the standard form of policy prescribed in: New York,

North Carolina,
Connecticut,

North Dakota,
Louisiana,

*Pennsylvania,
Michigan,

Rhode Island,
Missouri,

Wisconsin.
New Jersey,

* See note to “Duty to Save and Preserve Property," Rule 1,

page 2.

The standard form prescribed in:
Maine,

New Hampshire,
Massachusetts,

South Dakota,
Minnesota,
does not contain provision as to lightning.

In the States where no standard form is prescribed and other than those above named, the New York standard form is in general use.

The valued policy statute of Missouri held to have no application to insurance against lightning.

Kattelmann v. Fire Assoc., 79 Mo. App. 447.

RULE 8. Burden of Proof as to Cause of Damage. When policy in terms assumes damage by lightning, but excludes that caused by cyclone, or wind or tornado, the burden rests upon the assured to show just what damage was caused by the lightning, exclusive of the wind; both claim and recovery must be confined to the actual direct damage caused by the lightning; if the actual damage by lightning cannot be thus separated and shown, assured cannot claim more than nominal damages ;' it may be a question for the jury.? It must be established by a preponderance of evidence and will not be submitted to a jury on speculative or conjectural testimony, when equal possibility of another cause.

1. Warmcastle v. Scottish Union & National Ins. Co., 201 Pa. St. 302, 50 Atl. Rep. 941. And see Beakes v. Phænix Ins. Co., 143 N. Y. 402, 38 N. E. Rep. 453, 24 Ins. L. J. 73.

2. Warmcastle v. Scottish Union & National Ins. Co., Pa. St. 59 Atl. Rep. 1105.

3. Clark v. Franklin Ins. Co., 111 Wis. 65, 86 N. W. Rep. 549.

3

RULE 9.

Fall of Building - Rule as Imposed by Contract. If a building, or any part thereof, fall, except as the result of fire, all insurance on such building or its contents shall immediately cease.

[ocr errors]

This rule is imposed by above terms in the standard form of
policy prescribed in:
New York,

North Carolina,
Connecticut,

North Dakota,
Louisiana,

*Pennsylvania,
Michigan,

Rhode Island,
Missouri,

Wisconsin.
New Jersey,
The standard form of policy prescribed in:
Maine,

New Hampshire,
Massachusetts,

South Dakota,
Minnesota,
does not contain above provision.

In the States where no standard form is prescribed and other than those above named, the New York standard form is in general use.

RULE 1o. Fall of Building Result of Fire - Question of Fact. If the fall is result of a fire, the company is liable; if any evidence of another cause it is a question of fact to be determined by a jury.

Kiesel v. Sun Ins. Co., 88 Fed. Rep. 243, 60 U. S. App. 10, 31 C. C. A. 518; Leonard v. Orient Ins. Co., 109 Fed. Rep. 286, 48 C. C. A. 369, subsequent appeal (C. C. A.), 120 Fed. Rep. 808; Transatlantic Ins. Co. v. Dorsey, 56 Md. 70; Ermentraut v. Girard Ins. Co., 63 Minn. 305, 65 N. W. Rep. 635, 25 Ins. L. J. 81, 30 L. R. A. 346; Friedman v. Atlas Assur. Co., 133 Mich. 212, 94 N. W. Rep. 757; Nelson v. Traders’ Ins. Co., 86 App. Div. 66, 83 N. Y. Supp. 220, affd., 181 N. Y. 472, 74 N. E. Rep. 421. See “ Direct Loss or Damage by Fire.”

RULE 11.

Fall not Result of Fire. If building falls not as result of fire, and fire breaks out as result of or subsequently to the fall, company

* See note to “ Duty to Save and Preserve Property,” Rule 1, page 2

[ocr errors][ocr errors]

is not liable;' otherwise if the fall was caused by an explosion, and fire ensues.?

1. Nicholls v. Sun Mutual Ins. Co., 71 Miss. 326, 14 So. Rep. 263, 23 Ins. L. J. 633; Farrell v. Farmers' Ins. Co., 66 Mo. App. 153; Firemen's Fund Ins. Co. v. Congregation Sholom, 80 Ill. 558; Liverpool, L. & G. Ins. Co. v. Ende, 65 Tex. 118; Huck v. Globe Ins. Co., 127 Mass. 306. And see Nave v. Home Ins. Co., 37 Mo. 431.

2. John Davis & Co. v. Insurance Co. of N. A., 115 Mich. 382, 73 N. W. Rep. 393, 27 Ins. L. J. 184. And see Rule 3.

RULE 12.

Meaning of Fall.

Building does not “ fall ” within the meaning of the rule or policy (see Rule 9) when it is blown from blocks on which resting, and turns over on its side, retaining its identity.

Teutonia Ins. Co. v. Bonner, 81 Ill. App. 231. And see Firemen's Fund Ins. Co. v. Congregation Sholom, 80 Ill. 558; Farrell v. Farmers' Ins. Co., 66 Mo. App. 153.

RULE 13

Meaning of Part of Building - Construction.

The reference in Rule 9 to“ any part” of a building does not apply to any minute or fragmentary portion. The phrase should be construed most favorably to the insured as not meaning any fragment or portion, but an integral material or substantial part of the entire building; it means some functional portion of the structure, the falling of which would destroy its distinctive character as such.

Insurance Co. v. Crunk, 91 Tenn. 376, 23 S. W. Rep. 140. And see Brenner v. Liverpool, L. & G. Ins. Co., 51 Cal. 101; Security Ins. Co. v. Mette, 27 Ill. App. 324; Home Ins. Co. u. Tomkies, 30 Tex. Civ. App. 404, 71 S. W. Rep. 812, affd.,

. 71 S. W. Rep. 814; Nelson v. Traders’ Ins. Co., 181 N. Y. 472, 74 N. E. Rep. 421.

RULE 14. Burden of Proof as to Fall of Building. The condition embodied in Rule 9 is a condition subsequent, and the burden of proof rests upon the insurance company to establish that the building fell before the fire;' testimony of civil engineer experts may be admissible. Building may be “ shattered” by an explosion and still not “ fall ” within meaning of the policy.

1. Western Assur. Co. v. Mohlman, 83 Fed. Rep. 811, 51 U. S. App. 577, 28 C. C. A. 157, 27 Ins. L. J. 392 ; Friedman v. Atlas Assur. Co., 133 Mich. 212, 94 N. W. Rep. 757; Transatlantic Ins. Co. v. Bamberger (Ky.), 18 Ins. L. J. 625. And see Kiesel v. Sun Ins. Co., 88 Fed. Rep. 243; Nichols v. Sun Mutual Ins. Co., 71 Miss. 326; Phænix Ins. Co. v. Luce, 60 C. C. A. 655, 123 Fed. Rep. 257.

2. Western Assur. Co. v. Mohlman, supra. And see Kiesel & Co. v. Sun Ins. Co., 88 Fed. Rep. 243, 31 C. C. A. 518, 60 U. S. App. 10.

3. Eppens, Smith & Wieman Co. v. Hartford Ins. Co., 99 App. Div. 221, 90 N. Y. Supp. 1035.

3

RULE 15.

Fall of Building Caused by Explosion Within It Followed by Fire.

Rule 9 as to fall of building does not include a case of fall of a building by an explosion within it, and of a fire immediately ensuing, as liability in such a case is specifically assumed under the explosion clause or exception. Dows v. Faneuil Hall Ins. Co., 127 Mass. 346.

And see Rules 1-6.

RULE 16. Specific Exemptions, Exceptions, and Limitations as to Liability

Imposed by Contract. The company is not liable for loss caused directly or indirectly by invasion, insurrection, riot, civil war,

« PreviousContinue »