Page images


capable of being safely utilized in restoring the building to the condition in which it was before the fire. The words “ total loss," when applied to a building, mean totally destroyed as a building, that is, that the walls, although some portion of them remain standing, are unsafe to use for the purpose of rebuilding, and would have to be torn down, and a new building erected throughout. There can be no total loss of a building so long as the remnant of the structure left standing above the foundation is reasonably and safely adapted for use (without being taken down) as a basis upon which to restore the building to the condition in which it was immediately before the fire; and whether it is so adapted depends upon the question whether a reasonably prudent owner of a building uninsured, desiring such a structure as the one in question was before the fire, would, in proceeding to restore the building, utilize such standing remnant as such basis. If he would, then the loss is not total.

Northwestern Life Ins. Co. v. Rochester German Ins. Co., 85 Minn. 48, 65, 88 N. W. Rep. 265, 272; Thuringia Ins. Co. v. Mallott, 111 Ky. 917, 64 S. W. Rep. 991, 55 L. R. A. 277; Providence-Washington Ins. Co. v. Board of Education, 49 W. Va. 360, 38 S. E. Rep. 679; German Ins. Co. 0. Eddy, 36 Nebr. 461, 54 N. W. Rep. 856, 22 Ins. L. J. 468; McCready v. Hartford Ins. Co., 61 App. Div. 583, 70 N. Y. Supp. 778; Pennsylvania Ins. Co. v. Drackett, 63 Ohio St. 41, 57 N. E. Rep. 962.


Photographs as Evidence of Total Loss.

Where it is claimed that there is a total loss under the provisions of a valued policy statute, while photographs of the building after the fire may be admissible to show its condition, they are not conclusive, as they do not show the walls necessary to be torn down.

Hartford Ins. Co. v. Bourbon County Court, 115 Ky. 109, 72 S. W. Rep. 739.

RULE 54.

Total Loss as Question of Fact or Law.

The question or issue as to“ total loss” or destruction of a building is ordinarily one of fact, to be determined by a jury;' but not where the undisputed facts establish a case to which Rule 50 is applicable.2

1. Insurance Co. of N. A. v. Bachler, 44 Nebr. 549, 62 N. W. Rep. 911, 24 Ins. L. J. 481; Phænix Ins. Co. v. Port Clinton Fish Co., 14 Ohio C. C. 160.

2. Corbett v. Spring Garden Ins. Co., 155 N. Y. 389, 50 N. E. Rep. 282, 27 Ins. L. J. 606.

TITLE V. Exemptions, Exceptions, and Limitations. RULE 1. Liability for explosion as imposed and limited by

2. Loss caused solely by explosion — No preceding fire.
3. Damage by concussion of air caused by explosion in

another building.
4. Fire preceding explosion — Question of fact.

5. Meaning of word “fire” as preceding explosion.
6. Explosion caused by lightning.
7. Loss caused by lightning -- Rule as imposed by con-

tract. 8. Burden of proof as to cause of damage. 9. Fall of building - Rule as imposed by contract. 10. Fall of building result of fire - Question of fact. 11. Fall not result of fire. 12. Meaning of fall. 13. Meaning of part of building - Construction. 14. Burden of proof as to fall of building. 15. Fall of building caused by explosion within it, fol

lowed by fire.

RULE 16. Specific exemptions, exceptions, and limitation as to

liability imposed by contract. 17. Specific exception not included or covered by general

description. 18. When specific insurance by other policies excepted.


Liability for Explosion as Imposed and Limited by Contract.

The insurance company is not liable for a loss caused by explosion of any kind unless fire ensues, and, in that event, for the damage by fire only.

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

North Carolina,

North Dakota,


Rhode Island,

New Jersey,
and is substantially the same in the standard form prescribed in:


New Hampshire.
The South Dakota form does not contain the 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.


[ocr errors]

Loss Caused Solely by Explosion - No Preceding Fire. A loss occurring solely from an explosion not resulting from a preceding fire is covered by the exception; an explosion occurring from contact of escaping vapor with a lighted match is also within exception.

* See note to “Duty to Save and Preserve Property,” Rule 1, À Å lighted match is not a “ fire ” within the meaning of the policy.

page 2.

Mitchell v. Potomac Ins. Co., 183 U. S. 42, 22 Sup. Ct. Rep. 22, affg. 16 App. D. C. 241.


Damage by Concussion of Air Caused by Explosion in Another


Damage caused by concussion of air resulting from an explosion in another building is not covered;" even though such explosion was caused by a fire. But the company may be liable for the damage by fire, when fire ensues. 3

1. Cabellero v. Home Ins. Co., 15 La. Ann. 217.

2. Miller v. London & Lancashire Ins. Co., 41 Ill. App. 395; Hustace v. Phænix Ins. Co., 175 N. Y. 292, 67 N. E. Rep. 592, revg. 71 App. Div. 309, 75 N. Y. Supp. 568. And see Everett v. London Assur. Co., 19 C. B. N. S. 126.

3. John Davis & Co. v. Insurance Co. of N. A., 115 Mich. 382, 73 N. W. Rep. 393, 27 Ins. L. J. 184. And see Hustace v. Phænix Ins. Co., supra; Orient Ins. Co. v. Leonard (C. C. A.), 120 Fed. Rep. 808, previous appeal 109 Fed. Rep. 286, 48 C. C. A. 369.


Fire Preceding Explosion - Question of Fact.

When explosions or explosive effects occur after the commencement of a fire, or during its progress, and is an incident of a fire or a result of it, the whole loss is a loss by fire within the meaning and protection of the policy, notwithstanding the destructive effect of the explosions; it is ordinarily a question of fact;? if the explosion precedes the fire, the company is liable for the damage by fire only, and not for that caused by the explosion.

1. Transatlantic Ins. Co. v. Dorsey, 56 Md. 70; Heuer v. Northwestern Ins Co., 144 Ill. 393, 33 N. E. Rep. 411, 22 Ins. L. J. 518; Waters v. Merchants' Ins. Co., 11 Pet. (U. S.) 213; Renshaw v. Firemen's Ins. Co., 33 Mo. App. 403 ; Scripture v. Lowell Ins. Co., 10 Cush. (Mass.) 366; Cohn v. National Ins. Co., 96 Mo. App. 315, 70 S. W. Rep. 259; La Force v. Williamsburg City Ins. Co., 43 Mo. App. 518; Renshaw v. Missouri State Ins. Co., 103 Mo. 606, 5 S. W. Rep. 945; Washburn v. Insurance Cos., 2 Fed. Rep. 304, 633, Fed. Cas. Nos 17,212, 17,215, 17,216; Insurance Co. v. Foote, 22 Ohio St. 348; Briggs v. N. A. Ins. Co., 53 N. Y. 446. And see also Louisville Underwriters v. Durland, 123 Ind. 544; Heffron v. Kittanning Ins. Co., 132 Pa. St. 580; Smiley v. Citizens' Ins. Co., 14 W. Va. 33.

2. Transatlantic Ins. Co. v. Dorsey, supra. 3. Cohn v. National Ins. Co., supra. And see preceding cases.


Meaning of Word “Fire" as Preceding Explosion.


Where the only fire preceding and causing the explosion is that of a match,' or a fuse,” or a lamp, or lightning,* or gas jet, it is not such a fire as is contemplated or intended by that term in the policy; but may be otherwise where a burning lamp explodes.

1. Heuer v. Westchester Ins. Co., 44 Ill. App. 429; Heuer v. Northwestern Ins. Co., 144 Ill. 393, 33 N. E. Rep. 411, 22 Ins. L. J. 518.

2. Phoenix Ins. Co. v. Greer, 61 Ark. 509, 33 S. W. Rep. 840, 25 Ins. L. J. 311.

3. Briggs v. N. A. Ins. Co., 53 N. Y. 446.

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

5. United F. & M. Ins. Co. v. Foote, 22 Ohio St. 340. 6. Heffron v. Kittanning Ins. Co., 132 Pa. St. 580.

« PreviousContinue »