flames, and exploded. The explosion extended through the open door of the kiln to the outer part of the buildings, resulting in the substantial destruction of a portion of the property insured, the buildings in which it was, and the death of a number of employes, and the serious injury of many more.

Proofs of loss and damage were seasonably made by the assured and tendered to the insurer, but it refused to recognize any liability under the policy. The assured thereupon assumed the responsibility of adjusting and paying the claims presented for death and personal injuries, and in partial satisfaction of them, expended $21,392.86. It is agreed that the assured is still liable for $6,500 on unsettled death and personal injury claims.

The wreck caught fire and in part was consumed. The buildings were erected at a cost of $13,537.28; the machinery in them covered by the policy cost $17,239.39, and the stock in process of manufacture at the time of the accident was worth $2,737.78.

There was salvage of $3,000 on the buildings, $6,035.50 on the machinery, and $961,95 on the stock, and the assured collected on a fire policy covering the same property $7,176.77, the amount realized from salvage and fire insurance being $17,174.22.

The total loss by reason of the accident on the buildings, machinery and stock was $16,349.23, to recover which, and the $21,392.86. paid in settlement of claims for death and personal injuries, and $6,500 the amount of claims of the latter class, for which the assured is still liable, this suit was brought.

A statute was enacted by the Legislature of New York in 1853, authorizing the formation of companies to issue policies "upon steam boilers against explosion, and against loss or damage to life or property resulting therefrom." The defendant was organized under that statute, and while operating under it issued the two policies which were surrendered.

The statute was enlarged in 1889 by an amendment, authorizing insurance "upon steam boilers and upon pipes and machinery connected therewith, or operated thereby, against explosion and accident, and against loss or damage to life or property resulting therefrom." The policy in suit was issued after this enactment went into force. A demand doubtless existed for insurance, affording greater protection to manufacturers, and it was to enable companies operating under the statute of 1853 to issue policies like the one in suit that the statute was amended.

On its face it is for indemnity against explosion and accident and loss or damage resulting therefrom to the property, real and personal, of the assured, and to all property of others for which the assured may be liable, and against accidental, personal injury and loss of life, for which the assured may be liable to its employes or to any other person, caused by the boilers, or any machinery of whatever kind connected with and operated by them.

The word explosion, as defined by the third condition or covenant on the back of the policy, means a sudden and substantial rupture of the flues of the boilers caused by the action of steam. But neither that, nor any other condition, defines, or in any wise restricts the ordinary meaning of the word accident. That word, used as it is in its usual sense, covers loss due to the breaking or injury of the machinery and injury to the boilers not due to explosion.

The explosion of the starch dust in the kiln, the force of which threw down the walls of the buildings and substantially destroyed the machinery, was as much an accident to it, within the meaning of the policy, as if the walls had been demolished by an earthquake, or the force of the wind. If the defendant's construction of the policy is correct, it is not liable for any loss which is not due to an explosion of the flues of the boilers, caused by the action of 'steam, or a break of the machinery owing solely to its weakness, and not from external force. In other words, no explosion is an accident, and only loss due to an explosion of the boilers and the breaking of the machinery from its own weakness, and not from external violence, can be recovered. If, owning to the action of steam, a pipe had exploded resulting in loss and liability to the assured, however great, the insurer would not have been liable; nor would it have been liable if an enemy had destroyed or injured the machinery and boilers by exploding dynamite or gunpowder under them. A fair reading of the policy does not justify this construction of it.

The third condition further provides that "No claim shall be made under this policy for any explosion or loss caused by the burning of the building or the steamer containing the boiler

or

boilers, engines, elevators or machinery, or for any loss or damage by fire, resulting from any cause whatever." It is urged by the defendant that, even if the explosion of the starch dust was an accident within the meaning of the policy, the loss sustained by the plaintiff was a fire loss.

No property was consumed or damaged by fire until after the explosion, and no recovery is sought in this action for damage by fire to the wreck. That loss was adjusted and paid under a fire policy. The property insured was intact when the explosion occurred. The starch dust came in contact with the fire in the kiln, as already stated, and exploded, wrecking the machinery and buildings. A lighted lamp at the door of the kiln might have produced results no less disastrous, and it could have been urged, with equal propriety, that the loss was a fire loss. The policy was carefully prepared, executed and delivered by the insurer to the assured, and it is a familiar rule of construction that, when the meaning of such instruments is uncertain, or doubtful, they should be construed most strongly against the insurer.

The plaintiff is entitled to recover the amount it has paid in satisfaction of claims for deaths and personal injuries, "caused by said boilers, or any machinery of whatever kind, connected therewith and operated thereby."

The kilus were heated by steam pipes passing through them. These pipes were part of the machinery, and by means of them the kilns were connected with the boilers and operated by them. Without the kilns, or something like them, connected with the machinery and co-operating with it, the plaintiff could not have carried on its business. It was while the machinery was in operation that the accident to it occurred, which resulted in the death of some of the employes and the personal injury of others.

The ascertained, but unsatisfied, death and personal injury claims, amounting to $6,500, which I understand are to be treated as paid, the amount actually paid in satisfaction of claims of the same character, and the loss on the building, machinery and stock, on account of the accident, make a total of $44,241.09. Interest on this amount would be equal to depreciation in the value of the buildings and machinery, if there was depreciation, and interest is not allowed.

Finding and judgment for the plaintiff for the amount above

shown due.

SUPREME COURT OF PENNSYLVANIA.

PICKETT

V8.

PACIFIC MUTUAL LIFE INS. CO.*

The policy insured against "such violent and accidental injuries as shall be externally visible upon his person," and death resulting therefrom. It excepted death or injury resulting from or attributable partially or wholly to inhalation of gas." The insured descended a well to repair the pumps and was overcome and suffocated by the noxious gas in the well. Held, That this was not death from inhalation of gas within the meaning of the policy, which contemplated a voluntary and conscious inhalation. Held, That the death was due to violent and accidental injury from external

means.

Held, That, where the company failed to attach copies of its by-laws or application to the policy as required by statute, it should not be permitted to offer them in evidence.

D. I. BALL and C. C. THOMPSON, for Appellant.

MESSRS. NOYES & HINCKLEY and BROWN, STONE & RICE, per Contra.

STERRETT, J.

The undisputed facts, upon which the jury in this case was instructed to find for the plaintiff the full amount of his claim, are briefly as follows: On June 4, 1889, the plaintiff's intestate, John W. Moore, received and paid for the policy of insurance on which this suit was brought, a copy of which will be found in the record. Returning to his boarding-house, same evening, he informed his landlady that he had no dinner, and requested that his supper be prepared. He then went to the well in the open yard for a drink, and finding that the pump required priming with water, he remarked, that he would fix it so as to obviate that difficulty in the future, After procuring a hatchet, and removing planks from the opening at the top, he descended into the dug-out portion of the well, which was four or five feet wide, and only ten or twelve feet deep, for the purpose of closing a small opening in the iron pipe about mid-way down. A few minutes later his lifeless remains were found at the bottom of the well. He died from asphyxia or

* Opinion filed, October 5, 1891.

suffocation, due to the accidental and unconscious inhalation of carbonic acid or other deadly gas that had unexpectedly accumulated in the dug-out portion of the shallow well.

The well, with which deceased was familiar, and in which he had been shortly before, was one of those known as a "driven well," made by driving an iron pipe into the ground, to the depth, in this case, of about forty feet. For the distance of about ten or twelve feet from the top the earth around the iron pipe was dug out so as to form, as above stated, an open well of about four or five feet in diameter, in which there was little or no water. The top of the well was covered with plank.

The deceased was a strong, healthy man. His sudden, and wholly unexpected death, under the circumstances above stated, and within a few hours after he had procured the policy of insurance, undoubtedly resulted from external, violent and accidental injuries or means, and without any conscious or voluntary act on his part. There was no evidence, nor was it even suggested, that he had committed suicide, or that he was wanting in reasonable care, or that he voluntarily exposed himself to danger. In describing the condition in which he found the body of deceased, the physician, who made the post-mortem examination, testified: "The surface of the body was of a livid bluish color; the lips and tongue were blue; the right side of the head was partially distended with dark blood; the left side was nearly empty; the lungs contained more trood than they would under different circumstances; they were somewhat congested; the pulmonary arteries were distended with blood; the liver was slightly congested, and also the kidneys; there was, however, no disease of the kidneys, no disease of any of the internal organs *** His death was caused by asphyxia, due to the inhalation of gas.

If the latter undisputed and undoubtedly correct conclusion of fact needed any confirmation, it may be found in the testimony, as to the effect of the same noxious gas on those who went to the relief of the deceased, and assisted in removing his remains from the well. It shows how narrowly they escaped a similar violent and accidental death.

The notice and proofs of death were full and complete. Their sufficiency was not even questioned.

In view of the undisputed facts, of which the above is an outline, the learned president of the common pleas refused to affirm defendant's points for charge, some of which are predicated of the

VOL XXI.—5.