Western Assur. Co. v. Hann

78 So. 232, 201 Ala. 376, 1917 Ala. LEXIS 20

• Court: Supreme Court of Alabama
• Decided: December 20, 1917
• Docket: 6 Div. 511.
• Status: Published

Opinion

GARDNER, J.

The foregoing statement of the case will suffice as a general outline of the issues presented and the questions here for determination. As the result of the fire of December 12, 1914, the Steele-Smith Building, which was adjacent to the Hann Building, in which plaintiff’s goods were located, was destroyed, and a large portion of the west wall fell immediately as a result of that fire, but the east wall thereof, which was next to the Hann Building, remained standing until April 21, 1915, when it fell over onto the Hann Building, completely demolishing the same.

It is insisted by counsel for appellant that the insurance company was exempted from liability in this case by the following provisions of the policy:

“If a building, or any part thereof, falls, except as a result of fire, all insurance by this policy on such building, or its contents, shall immediately cease.”

It is further insisted that the evidence was insufficient for submission to the jury of the question as to whether or not the fire of December 12, 1914, was the proximate cause of plaintiff’s loss, and that the affirmative charge as requested was therefore due the defendant. This is the question of prime importance on this appeal, and will be hero first considered.

[1] In the first place, it is argued that importance should be attached to the use of the word “direct” as used in the policy insuring plaintiff “against all direct loss or damage by fire.” It has been held, however, and we think correctly so, that the word “direct,” used in this connection in such policies, means merely “immediate” or “proximate” as distinguished from “remote.” Ermentrout v. Girard F. & M. Ins. Co., 63 Minn. 305, 65 N. W. 635, 30 L. R. A. 346, 56 Am. St. Rep. 481, and that no particular force is to be attached therefore to the word “direct” as used in the policy. N. Y. Cent. Express Co. v. Traders’ & M. Ins. Co., 132 Mass. 377, 42 Am. Rep. 440.

It is to be observed also that there is no distinction to be made by the cause of the loss under the language of the policy, where what is insured against is described as “all direct loss or damage by fire,” and the causation as it exists in the law of negligence. Speaking to this question, the Supreme Court of Massachusetts, in Lynn Gas, etc., Co. v. Meriden F. I. Co., 158 Mass. 570, 33 N. E. 690, 20 L. R. A. 297, 35 Am. St. Rep. 540, said:

“On principle, and by the weight of authority in many well-considered oases we think it clear that, apart from the single exception above stated, the question, What is a cause which creates a liability? is to be determined in the same way in actions on policies of fire insurance as in other actions.”

The exception referred to is without any bearing upon this case, and need not be here considered. The opinion in that case also points out that the direct and proximate cause does not mean that the cause or agency which is nearest in time or place to the result is necessarily to be chosen, concluding this thought in the following language:

“The active efficient cause that sets in motion a train of events which brings about a result without the intervention of any force started, and working actively from a. new and independent source, is the direct and proximate cause referred to in the cases.”

The opinion in that ease (Lynn Gas, etc., Co. v. Meriden F. I. Co., supra) concludes as follows:

“In the present case, the electricity was one of the forces of nature, a passive agent working under natural laws, whose existence was known when the insurance policies were issued. Upon the theory adopted by the jury, the fire worked through agencies in the building, the atmosphere, the metallic machinery, electricity, and other things; and, working precisely as the defendants would have expected it to work if they had thoroughly understood the situation and the laws applicable to the existing conditions, it put a great strain on the machinery and did great damage. No new cause acting from an independent source intervened. The fire was the direct and proximate cause of the damage according to the meaning of the words ‘direct and proximate cause,’ as interpreted by the best authorities.”

In Home Telephone Co. v. Fields, 150 Ala. 306, 43 South. 711, this court had for consideration, interestingly presented, the application of the principle of the proximate cause of an injury. The opinion made use of the following quotation from Thompson v. L. & N. R. R. Co., 91 Ala. 501, 8 South. 408, 11 L. R. A. 146, which is of more or less interest in this connection:

“If the original wrong becomes injurious only in consequence of some distinct wrongful act or omission by another, the injury shall be imputed to the last wrong. But, if the original act was wrongful, and would naturally, according; to the ordinary course of events, prove injurious to some other person, and does actually result in injury, through the intervention of causes which are not wrongful, the injury shall be referred to the wrongful cause. If damage has resulted directly from concurrent, wrongful acts of two persons, each of these may be counted on as the proximate cause and the parlies held responsible jointly or severally for the injury.”

An interesting discussion of proximate cause is found in Union Pac. Ry. Co. v. Callaghan, 56 Fed. 988, 6 C. C. A. 205, and what is there said in this connection we think is supported by both reason and authority, and we take from that opinion the following pertinent extracts:

“In considering these questions it must also be borne in mind that the proximate cause is not always nor generally the act or omission nearest in time or place to the effect it produces. In the sequence of events there are often many remote or incidental causes nearer in point of time and place to the effect than the moving cause, and yet subordinate to and often themselves influenced, if not produced, by it. Thus a defect in the construction of a boiler of an engine may long exist without harm, and yet finally be the proximate cause of an explosion, to which the negligence of an engineer, the climate, and many other incidental causes nearer by years to the effect may contribute. Gases illustrating this proposition are Railroad Co. v. Kellogg, 94 U. S. 469 [24 L. Ed. 256]; Ins. Co. v. Boon, 95 U. S. 117, 130; Lynch v. Nurdin, 1 Q. B. 29; Illidge v. Goodwin, 5 Car. & P. 190-192; Clark v. Chambers, 3 Q. B. Div. 327; Pastene v. Adams, 49 Cal. 87. Again, an effect is usually the result of many causes, some proximate, others remote. The rule by which the former are to be separated from the latter is admitted by all to be difficult of application, and the best that can be done is to carefully apply it to the circumstances of each case as it arises. * * * The independent intervening cause that will prevent a recovery on account of the act or omission of a wrongdoer must be a cause which interrupts the natural sequence of events, turns aside their course, prevents the natural and probable result of the original act or omission, and produces a different result, that could not have been, reasonably anticipated.”

In discussing this question of proximate cause, the court in Railroad Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256, used the following language:

“The true rule is that what is the proximate cause of an injury is ordinarily a question for the jury. It is not a question of science or of legal knowledge. * * * In the nature of things, there is in every transaction a succession of events, more or less dependent upon those preceding, and it is the province of a jury to look at this succession of events or facts, and ascertain whether they are naturally' and probably connected with each other by a continuous sequence or are dissevered by new and independent agencies, and this must be determined in view of the circumstances existing at the time.”

[2] As the result of the fire of December 12, 1914, a large portion of the west wall immediately fell, leaving the said west wall with a V-shaped opening. _ The eas wall, which was 140 feet in length and 70 feet in height, remained standing practically without support, except it was tied at each end by the corners of the building to the. front and rear walls, and remained standing until, it fell on April 21, 1915. The east wall fell substantially to the same extent as did the west wall, leaving a similar V-shaped opening. Considerable water was, of course, thrown upon both walls; and a larger portion of the plastering of the east wall was torn away. The fire was hotter on the west wall on account of the draft produced by the elevator shaft. On the day the east wall fell there was a strong wind, one witness stating it was a “stormy day, gusty,” but there was no evidence tending to show that the weather was of such unusual character as not to be reasonably anticipated, and, from the testimony, we think the jury could infer that the condition of the weather was such as is of more or less frequent occurrence during the period of a year. It was therefore to he clearly anticipated that winds of this character would blow about the weakened wall left standing after the fire, and, although the jury may have found that the winds were contributing causes, they could also have concluded that they were not independent intervening causes, but only a natural and inevitable sequence, and that the fire was in fact the predominating, paramount cause. The jury could have inferred that the fall of the west wall was the immediate consequence or l-e* suit of the fire, and the fall of the east wall biit the delayed consequence thereof. This principle was given application by the Supreme Court of-Minnesota in Russell v. German F. I. Co., 100 Minn. 528, 111 N. W. 400, 10 L. R. A. (N. S.) 320. The facts of that case bear striking similarity to those here presented; the greatest difference being in the length of time the wall remained standing. In the Russell Case the wall stood one week, while in the instant case the wall did not fall [until the expiration of something more than four months. We will not review the facts, but, as the case is so nearly in point, we take from the opinion the following extracts:

“Whatever may have been the original meaning of the maxim, ‘Causa próxima et non remota spectator,’ it has been clearly settled by a long line of decisions that what is meant by proximate cause is not that which is last in time or place, not merely that which was in activity at the consummation of the injury, but that which is the procuring, efficient, and predominant cause. * * * ‘The proximate cause of an injury, within the meaning of the law of negligence, is such cause as operates to produce particular consequences without the intervention of any independent or unforeseen cause or event, without which the injury could not have occurred, such consequences as might reasonably have been anticipated as likely to occur from the alleged negligent act.’ Proximate cause has also been defined as being that from which the effect might reasonably be expected to follow, without the concurrence of any unforeseen circumstances. * * * In discussing the liability to misapply the maxim, Mr. Phillips (Phillips, Ins. § 1182) observes: ‘In case of the concurrence of different causes, to one of which it is necessary to attribute the loss, it is to be attributed' to the efficient predominating peril, whether it is or is not in activity at the consummation of the disaster.’ Again: ‘In every insurance, the risk on each peril is liable to be affected by every other peril; and the party, whether insurer or assured, at whose risk a peril is, must bear the loss by such peril, though it may have been indirectly and incidentally enhanced by another, for which he is not answerable, where there is no express or implied stipulation, obligation, or condition against the subject being exposed to such other peril. * * * The inquiry must always be whether there was any intermediate cause disconnected from the primary fault, and self-supporting, which produced the injury. * * * Applying these principles, it is evident that the contract must be considered from the standpoint of the parties at the time of its -execution, in the light of the surrounding circumstances. The risk as defined by the policy covered whatever causes produced the result. The inquiry resolves itself to determining whether or not the wind was an incident in the chain of events, or the primary cause. If, at the time the contract was entered into, windstorms of the character which arose on the night of December 13th, were liable to occur at any time, then the parties contracted with reference to such a possibility. If they could reasonably have foreseen that a fire might leave the wall, 69 feet high and 157 feet long, exposed to winds likely to occur, and that such a wind might blow it down, then such contingency was an element in the risk. The mere fact that the wall stood for the period of several days is not important, provided the wall was not subjected to such a test as occurred on the seventh day. The same inquiry now calling for solution would present itself had the wind come up one, two, or three days after the 13th. The question is not, alone, how much was the standing wall weakened by the fire? but, rather, did the fire leave the wall in such an exposed condition that the wind produced an effect which would not have been produced except for the fire? s: * * xn all probability the wall would have stood until the building was reconstructed, had it not been for the wind which came at a critical time. Although the later agency in the work of destruction, was 'it the real cause of the damage? The wind was not the cause, if it was an intervening agency which could reasonably have been foreseen. It could not reasonably have been foreseen if it was an improbable event, not likely to occur. Winds, such as arose December 20th, were liable to occur at any season of the year. It certainly does not conclusively appear from the evidence that such an event should not have been contemplated by the parties when they entered into the contract. It was at least a question of fact.”

We are persuaded that the logic of the Russell Case, from which the above quotations are taken, is sound, and we are convinced that the difference in the lapse of time between the fall of the wall in the instant case and in the Russell Case is not sufficient to take the case from without the influence of the principle there announced, and that the court properly submitted to the jury for determination the question as to whether or not the fire of December 12, 1914, was the proximate cause of the loss. The jury was authorized to so find from the evidence that the fire of December 12th, was in fact the proximate cause of the loss, and that the wind was but an intervening agency which could reasonably have been foreseen or anticipated, but an incident in the chain of events. Nor are we convinced to a contrary conclusion from an examination of the authorities cited by counsel for appellant, among them. Cuesta v. Royal Ins. Co., 98 Ga. 720, 27 S. E. 172; Alter v. Home Ins. Co., 50 La. Ann. 1316, 24 South. 180; Travelers’ Ins. Co. v. Murray, 16 Colo. 296, 26 Pac. 774, 25 Am. St. Rep. 267.

The question at issue in the case of Ogburn-Griffin Gro. Co. v. Orient Ins. Co., 188 Ala. 218, 66 South. 434, was whether or not the building there involved fell as a result of fire or on account of its own inherent weakness, and is without material aid to the case here presented. We therefore conclude the affirmative charge was properly refused to defendant

[3, 4] Pleas 3, 5, and 6, to which demurrers were sustained, failed to aver that the wall did not fall as a result of the fire, and there was no error in the action of the court thereon. Moreover, the contention of defendant, with reference to tlie provision of the policy exempting the company from liability under certain circumstances when the loss is the result of the falling wall, was fully submitted under the second and fourth pleas, and nuImerous special instructions were given to the jury as to this particular defense, and these pleas merely set up in varying language the same defense.

The questions raised by pleas 7, 8, 9, 10, and 11, which are sufficiently disclosed by a reference to the statement of the case, and need not be here repeated, were considered by this court in the recent case of Ætna Ins. Co. v. Hann, 196 Ala. 234, 72 South. 49, a branch, it seems, of this litigation, and were there decided adversely to appellant’s contentions. We have given due consideration to the argument of counsel on this appeal touching these questions, but we are not persuaded thereby of the incorrectness of what was stated in Ætna Ins. Co. v. Hann, supra. Without going into a discussion of these questions, we deem a reference to the above authority sufficient answer to these contentions.

[5] It is further insisted there was reversible error in the refusal of the affirmative charge requested by the defendant as to the second count of the complaint, upon the theory that, although there was some fire in the Hann Building on April 21, 1915, yet this fire did not originate until after the fall of the building, and that therefore there could be no recovery therefor. Counts 1 and 2 were identical with the exception of the date of the fire, which was laid under a videlicet. Whether or not there was technical error in the refusal of the affirmative charge upon this ground (Pollack v. Gunter, 162 Ala. 317, 50 South. 155; Carlisle v. Davis, 9 Ala. 858; Henry v. McNamara, 114 Ala. 107, 22 South. 428; U. S. Health, etc., Co. v. Veitch, 161 Ala. 630, 50 South. 95; U. S. Health, etc., Co. v. Savage, 185 Ala. 232, 04 South. 340; Pence v. Mut. Bene. Life, etc., Co., 180 Ala. 583, 61 South. 817) need not be determined, as the court in its general charge to the jury fully and explicitly stated to them that the fire which occurred in April could only be looked to in the ascertainment or estimation of the damage done, and not for the purpose of determining liability, and that the fire occurring subsequent to the fall of the wall was immaterial in so far as the issues here are concerned, as to liability, and in addition to this several charges were given at the defendant’s request, to the effect that plaintiff could not recover unless the loss was occasioned by the fire of December 12, 1914. In no event, therefore, in our opinion, could defendant have suffered any possible injury as to the second count of the complaint.

[6] It is further argued that defendant was entitled to the affirmative charge because of proof without contradiction of pleas 12 and 14, setting up that plaintiff neglected to use all reasonable means to save and preserve the property insured, when the property was endangered by fire which occurred in the neighboring premises, as was his duty under the provisions of the policy set out in the statement of the case. The evidence shows that one McLeod, manager of defendant’s store, consulted the building inspector of the city of Birmingham in reference to the safety of the east wall of the Steele-Smith Building, and was informed by the inspector that it was all right. The chief of the lire department also examined the wall, and gave as his opinion that it was safe. Plaintiff was occupying an adjacent building, and had no control over or connection with the Steele-Smith Building. We are of the opinion that the court properly left to the jury the consideration of the question as to whether or not the plaintiff had been guilty of such neglect in reference to the safety of his goods as to constitute a breach of the provisions of the policy above referred to, and that the defendant was not entitled to the affirmative charge on account of said pleas. Fletcher v. German-Am. Ins. Co., 79 Minn. 337, 82 N. W. 647.

We have here considered the questions on this appeal which we deem of sufficient importance to call for separate treatment. The few remaining questions — not here discussed —have been carefully reviewed, and we find nothing in them calling for a reversal of the cause. It results therefore that the judgment of the court below will be affirmed.

Affirmed.

ANDERSON, C. J., and McCLELLAN, MAYFIELD, and SOMERVILLE, JJ., concur. -SAYRE, J., dissents. THOMAS, J., not sitting.