.
294 '
FEDERAL REPORTER,
vol. 57.
I
Courts must proceed in an ordinary manner, and will not presume that the departments of the gove'rn'ment .will act otherwise than in accordance. with their. po)Vers and,duties. Acts. of the lawmaking power of the government are presumed to be within the constitutional powers of the congres$' until the' contrary is shown. to .the conrts in some fQrmaland proper mode recog;y,ize 4 by the law of proceedings inthe,cou$. lt is not less so in regard to the executive department of the government, and on ihis-hearing it must be presumed that the president' acted,in making these appointments, in accordance with the constitutions and laws; ,.The department of justice is a departJinent of the government ofthe United States recognized by law, and the attorney general of the United States is at the head of the department, and district attorneys and the United States marshals are under his order and direction. How can it be maintained that the district attorney and marshal are in the actual possession, of the offices they claim when they are acting in opposition to the orders and directions of .the attorney general of the United States? The new appointees to the offices of district attorney and marshal whose names are in the commissions they bear and present here are recognized on this hearing as the persons entitled to represent the United States in their respective offices. Other questions have been argued, but it is not deemed necessary to discuss them. AMERICAN RTEAM BOILER INS. CO. v. CHICAGO SUGAR REFINING CO. (Circuit Court of Appeals, Seventh Circuit. October 13, 1892.) No. 34. L INSURANOE AGAINST EXPLOSIONS-CONSTRUOTION OF POLICY.
A steam boiler Insuranc.e company that had no power to insure against fire Issued a policy inSUring "against explosion and accident and against loss or damage resulting therefrom." On the back of the policy was a covenant that no claim should be made under the policy "for any loss or damage by tire resulting from any cause whatever.... Held, that the company was not liable for lol's caused by fire.
2. SAME-Loss BY FIRE. A small fire broke out in the insured bullding, and continued for three 'days, though apparently extinguished each day. On the third day efforts to put out the fire resulted in bringing it in contact with a cloud of st.lrch dust, which ignited and exploded, demolishing the building, which then ,Qurned up. Herd, that the insul"ance company was not liable. since the explosion was merely an Incident of the fire. 48 Fed. Rep. 198, reversed. .
In Error to the Oircuit Oourt of the ,United States for the Northern District of lllinois. . . Action by the Chicago Sugar Refining Company against the American Steam Boiler Insurance Company upou a policy of 'insurance. PI:ti;p.tiff obtained judgment. 48 Fed. Rep. 198. Defendant brings. error. Reversed. Statement by BUNN, District Judge.
AMERICAN STEAM BOILER INS. CO. tI. CHICAGO SUGAR REFINING CO.
295
This action is brought upon a policy of Insurance I3sued by the plaintiff In error to the defendant In error on October 18, 1889. The loss for which in· demnity was claimed under the policy involved a substantial destruction of the buildings and machinery constituting the sugar refinl'ry of the defendant company In Chi¢ago. On the day the policy In suit was Issued the sugar refining (',()mpllny held two other policies In the American Steam Boller Company, which were surrendered upon the issuing of the one In smt. The facts in the case appear mainly from a stipulation of the parties. Other evidence was taken, but the· facts depend principally upon the stipulation, and are undisputed. A jury was waived, and the case tried by the court, which handed down Its findings in favor of the defendant in error on November 23, 1891, assessing Its damages at the sum of $44,241.09, for which sum judgment was entered. Only the conclusions of law are reviewable in this court. The essential facts as. they appear from the stipulation and from the findings of the court are as follows: The American Steam Boller Insurance Company was Incorporated November 5, 1883, under an act of the state of New York passed January 24, 1853, and certain other acts amendator1 thereof. On the 18th day of October, 1889, it issued to the defendant in error, the Chicago Sugar Refining Company, a policy as follows: "PERFECTED BLANKET CONTRACT POLIOY. "Policy No. A15;504: "Expires October 17. 1890. "Location, Ohicago, TIl. "American Steam Boiler Insurance Oompany, of New York. "Servimus Sevare. "Princillal OtIices: "Equitable Building, 120 Broadway, New York. "Cash Capital, $500,000.00. "Name of Assured, Chicago Sugar Refining Co. "Amount Insured, $250,000. "Premium, $1,250 payable upon delivery of policy, by check to order of the Company. "Form 801.
'250,000. "American Steam Boiler Insurance Company, of New York. "In consideration of the application herefor, and the sum of surrender of P{)ls. 65,326 and 65,327 and four hundred and fifty dollars, The American Steam Boiler Insurance Company do insure Chicago Sugar Refining Co. and their legal representatives to the amount of Two Hundred and Fifty Thousand Dollars, as follows,. viz: "Perfected Blanket Contract No. 300. "Approved by the Insurance Department of the State of New York, Sept. 16, 1889. Copyrighted, 1889, by The American Steam Boiler Insurance Company. "Upon the 21 steam boilers and 34 filters, tanks, converters, etc., on the premises occupied by the assured as Sugar Refinery, situate In the Oity of Ohicago, State of TIlinois, and upon the steam pipes, the 9 engines, the shattlng, belting, hangers, pulleys and the two elevators connected thereWith and "No. A15,5Q:4.
"Thatcher & Voight, "Mgrs. Western Dep't, "Phoenix Building, "Chicago. "Cash Capital $500,000.00.
296
operated thereby, against explosIon Rnd accident, and against loss or damage resulting therefrom, to the property,real and personal, of the assured, and to all property of other persons for which the. assured may be liable. ".And against· accidental personal injury and loss of human life, for which injury or loss of ·life the .assured may be liable, to his employes or to any other persons whomsoever; and whIch shall be caused by said boilers or any machinery of whatever kind, connected therewith or operated thereby. "But it Is understood: "That this company shall Dot be liable for any loss unless amounting t(> One Hundred Dollars or more, except for a loss resulting from Injury to person; and "That this company's entire liability for the Injury. or loss of life of any one person shall in no event exceed $5,000; and "That this Is a policy of Indemnity only. "And this poliey shall only cover losses sustained by the assured as above specified, between the seventeenth day of October, eighteen hundred and ·eighty-nlne, to the seventeenth day of October, eighteen hundred and ninety, at 12 o'clock, noon, to be paid at their otiices in the CIty of New York, within ten d/l;Ys after the receipt of proof of loss has been duly verified by the as· sured and accepted by the company, such indemnity payment being SUbject to the covenants and agreements herein; and this policy is issued and accepted upon the condition that all the provisIons printed upon the back of this policy are accepted by the assured as part of this contract, as fully as if they were recited at length over the signatures hereto atiixed. "In Witness Whereof, The American. Steam Boiler Insurance Company, of New York, have caused these presents to be signed by their President and attested· by their Secretary, in [Seal] the City of New York, but shall not be valid nor will any indorsement or agreement be binding unless countersigned by the duly authorized and regularly commissioned managers for Western Department. "Wm. K: Lmhl'op, President. "Y. R. Schenck, Secretary. "CountersIgned at Chicago, IlllnoIs, thIs eighteenth day of October, 1889. "Thatcher & Voight, Managers." On the back of the policy, among other covenants and conditions, all made a part of the poliey, were the following, which are the only ones material to this case: "(2) That at all reasonable times the inspectors of this company shall have access to said boiler or boilers, and the said engines, elevators, and mo.· chinery connected therewith, on which safety depends; and ample facilities shall be afforded, whenever requested, to said inspectors, for a thorough examination of said boilers, and for the indicating of the said engines, and for the inspection of the said elevntors and machinery." "(3) That by the term 'explosion,' as used in this policy, is to be understood a sudden and substantial rupture of the shell or flues of the boiler or boilers, caused by the action of steam, and no claim shall be made under this policy for any explosion or loss caused by the burning of the building or steamer containing the boiler or boilers, engines, elevators, or machinery, or for any loss or damage by' fire resulting from any cause whatever; nor for any loss or damage which may occur during any invasion, insurrection, riot, or civil or military commotion, or by theft or robbery, or by neglect of assured to use ail possible means to save and preserve the property for further loss or damage after the explosion or accident has occurred." The following facts were found by the court in regard to the origin of the disaster: "That on the 27th day of March, 1890, an explosion, accident, or disaster, or whatever name may properly be applied, occurred upon the premises reo ·ferred to in the policy, the result of which was a substantial destruction of·a portion of the machinery, boilers, engines, filters, tanks, converters, etc., described in the policY,and .of the buildings in which they were contained,
AMERICAX STEAM BOILER INS. CO. V. CHICAGO SUGAR REFINING CO.
29i
and in loss of life and Injury to various persons worki.ng in and about the premises, who were employes of the plaintiff." That the facts as to the origin of the disaster llnd its cause are as follows: "The premises involved were used by the plaIntiff in the manuf,lcture of starch and dextrine, and consisted of two buildings, vi.!:. the mill house. a one-story brick building, in dimensions about twenty-five feet wide by forty feet long, and the drying house, a two-story brick building, about two hundred feet long and fifty feet wide, the latter containing two dextrine kIlns, in which prepared starch was exposed to steam heat in oven-like rooms about eight feet high, eight feet in depth, and eighteen feet wide, bricked in on the sides and top and closed in front by an i.ron door. In these rooms or kilns were stearn pipes connecting with steam boilers, by means of which the steam heat was made available in the kilns or rooms in the process of manufacturing dextrine. High temperature is necessary to the success of the process." "That on the 25th of March, 1890, a fire was observed by the employes of the plaintiff, confined to ene of the kilns above mentioned. The fire was extinguished by the workmen, by directing npon it a stream of water through a two and one-half Inch hose. 1'he next day, ::'Ifarch 26th, a small fire was again observed and extinguished. Afterwards, on this day, an endeavor was made to clean the kiln of the charred and wet mll8S or crust formed by the charred starch and the water which had been thrown into the kiln on the 25th, but it was not thoroughly removed, some of the crust having been left in the kiln under the steam pipes, and especially in the back part of the kIln, where, on account of its construction, it could not be reached by the boy who was sent in to clean it out.. On the 27th it was again charged with fresh starch. Late In the aftel'lloon of this day the foreman of the dextrine works reported to Dr. Behr, the superintendent of the plaintiff, that a blaze. was observed in the same ldln where the flames had appeared on the 25th and 26th. Dr. Behr provided himself with a Babcock extinguisher, and, the door of the kiln being open, endeavored to put out the flames by directing upon it the contents of the extinguisher. He at first succeeded, but the· fiames immediately developed further back in the kiln, and in bis endeavors to extinguish that the stream from the extinguisher came in contact with the starch, thereby producing a cloud of starch dust, similar to what is known as mill dust, which coming in contact with the fiames, ignited,and produced an explosion. Through the open door of the kiln, in front of wltich Dr. Behr was staniling, the blaze was communicated to the mill dust in the outer part of the buildings, which also ignited and exploded. Dr. Behr was thrown back by the force of the explosion, somewhat burned and injured, and for a time rendered unconscious. When he recovered consciousness he was able to free himself from the debris about him. The result of the accident or explosion or by whatever o·ther name the fact may be desiguated was a substantial demolition of the two buildings above referred to, and the machinery,engines, and their connections contained in the two 'buiW,.ings. In additioo to this, several persons in the employment of the plaintiff were killed, and others were inJnred in a greater or less degree.'" "The blaze referred to in this finding was caused by the burning of the charred starch and crust referred to above. 'l'he blaze was a clear, bright flame, and was quite extensive, and burned strongly, being from six to eight inches high and extending under the pipes to the back of the kiln. There was no contact between the pipes and the charred starch or crust referred to. The steam pipes leading into the kiln were not defective or broken, nor was there a greater degree of heat caused by the pipes than was necessary and usual for the proper use of the kiln. The starch that was found to be blazing had been allowed to accumulate on the floor for some time, and had gradually become charred. Charred starch is combustible. The disaster was cansed by the ignition of the inflammable gas or mill dust in the drying house."
Gregory, Booth & Harlan, for plaintiff in error. John N. Jewett, for defendant in error.
298
FEDERAl. REPORTER,
vol. 57
Before HARLAN, Circuit Justice, and WOODS, Circuit Judge, and BUNN, District Judge. BUNN, District Judge, after stating the facts as above reported, delivered the opinion of the court. The circuit court found as a conclusion that the explosion was the cause of the damage, and gave judgment in favor of the plaintiff, now the defendant in error. Counsel for plabtiff in error contest this conclusion, and, in opposition to it, make two contentions: First. That if the disaster was caused by an accident in the general sense of that term, it was not such an accident as was insured against by the policy; that the word "accident," as it occurs in the poli,cy, is used subjectively, the same asthe word "explosion/, and accidents in the machinery, due to its own imperfections; and that, if the damage can be said to have resulted from accident at all, it is not one resulting from any defect in the machiner,t,and is not therefore fairly within the purview of the policy. Second. That the loss was properly a fire loss, and, as such, not insured against by the policy. According to the view this court has taken of the last contention, it is not to .consider the first one. The insurance company issuing the policy ip. .Buit .was boiler insurance company. Their charter did not authorize them to insure against loss by fire. The law of New York under which the company was organized did not authorize nor contemplate insurance against loss by fi,re. The premium paid was not the premium which would have been demanded by a fire insurance company.. The premium of one·half of 1 per cent. was no doubt a much smaller premium than would have been required forflreinsurance, and was made commensurate 'Which, in the language of the policy, was that with the of "explosion and accident, and against loss or damage resulting therefrom." This being the case, the policy should not be construed as including an inderru:iity against loss by fire, unless such a construction becomes necessary. Certainly, a construction which would make the action of the company ill issuing the policy ultra vires, should not be sought or adopted if any other reasonable construction lies close at hand, and ish1 accordance with the plain and obvious meaning .of the language used, and the one whicb. must have been contemplated by the parties themselves. When we look at the language of the policy, it is quite apparent that the parties not only did not contemplate or provide for such a risk,but, on the contrary, provided against it in language that is comprehensive and unmist*able. third condition or covenant on the back of the policy contains this provision, .' which is a part of the contract of the pa.rties:. I ." ;:1
"And no claim shall be made under this policy tor any explosion or loss caused by the bnrning of the building or steamer containing the boiler or boilers, engines, elevators, or machinery, or for any loss or damage by fire rCllultlng from any cause whatever."
AMERICAN STEAM BOILER INS. CO.
v.
CHICAGO SUGAR REFINING CO.
299
It must be admitted that stronger or more comprehensive language could not have been chosen to show that there was no indemnity against loss by fire contemplated. The meaning and force of it is sought to be broken by for defendant in error by that it is inconsistent with the main provision for insurance in the body of the policy, and therefore should not be given effect,-in analogy to a principle in the law of real estate that, when a condition in a deed is inconsistent with the grant itself, it is void. But it seems evident that this principle can have no application to this case. In this case, no doubt, the true principle of construction is that all parts of the policy should be considered and construed together in order to arrive at the true intent of the parties; but, aside from this, we can discover no inconsistency between the provisions in the body of the policy and this condition. The policy nowhere professes to insure against loss by fire. 'The company is a boiler insurance company, and it undertakes in the policy to insure against "explosion and accident," and there is a condition on the back of the policy which limits the term" 'explosion' to mean only a sudden and substantial rupture" of the shell or flues of the boiler or boilers, caused by the action of steam. It is not contended' that this condition is void, though, no doubt, it qualifies and limits materially the language of the provision in the body of the policy. Insurance against fire is perhaps the most common and important insurance indemnity known to business. It would be very unusual in a fire insurance policy if nothing were said in the indemnity clause of the policy directly and in terms about insurance against loss by fire. We suppose it might be possible to draw such a policy, but it would be, in a business way, very unusual. Now, it is manifest there is no provision in terms in this policy for insurance against fire. If it is there at all, it must rest upon inference and construction, which ought not to be in an insurance so common as that against fire. It was, no doubt, to guard against any such possible construction or inference that the express provision was put in against indemnity for "any loss or damage by fire resulting from any cause whatever." There is no inconsistency between this provision and the provision for insurance in the body of the policy, which, without this, should not be construed as an indemnity against fire. The putting in of this clause leaves little room for construction. Its import is too obvious and necessary. If the term "accident," as used in the policy, means accidents generally, those produced from outside causes as well as those resulting from defective machinery, still the accident of fire must be excepted by force of this condition of the policy. That the disaster which resulted in the destruction of the buildings and machinery ,was caused by fire is apparent from the evidence, and from the finding of facts by the court. The controlling, efficient cause was fire. The court finds that "the disaster was caused by the ignition of the inflammable gas or mill dust in the drying house." And the evidence fully supports this finding. The record shows that there was a fire in the kiln on
3QO
days. On the first day it had .extended to the top of the kiln. It was a dangerous fire, and caused t:q.e attendants much 'trouble. When they thought had succeeded in putting it out, they would find it suddenly starting up again. ,The finding of the court shows that "the blaze was a clear, bright flame, and was quite extensive, and burned strongly, being. from six to eight inches high, and extending under the pipes to the back of the kiln. * * * " Dr. Behr, a chemist, and the superintendent of the refinery, says: "We were always afraid of fire. As it happened, the dust caught fire, and thl'\ explanation of that is that such fine powders, if you powder it up fine enough, have the property of catching fire."
And he further says: "Hobbold came to me, and said, "I.'here is a tire in the dextrine kiln.' Now, generally, the first impulse when there is a fire is to put it out. I said, go there and put it out before it catcbes any further.'. · · Before I had a chance to collect my mind or close the door [of t.he kiln] I got a kind of 1\ flash, and that is all I, know. · · · Such dnst will catch fire, and bum like coal gas and air.. · · · .It takes very little to make this mixture of starch and air combustible. Just what happened as it fire I do not know. · · · After having had the experience, I canaay now that I could have prevented the explosion If I hadn't opened thektln. It the fire could have been confined to the kiln only, the damage would have been slight: there would not have been any explosion." [the blaze] was so long And big that it could not have been created by apiece of wood. A piece .If wood would have no business there."
"n
Again, he says:
Witness Hobbold, one of the attendants, testifies: , "After we opened the door there wns a flame. The fire reached to a fiame between the time when I went up to the office and came down again on the bottom of the kiln. · · · The fire was in the rear; · · · in the rear oftlle steam pipes, and underneath; underneath the steam pipes on the floor; on the foundation. The crust tha,t was packed tight from that 26th day that nlght was what was burning. The water got on there, and made a regular, may say, pancake, and the heat dried It, and the crust got tight to the 1'I1Uing tllere, and laid underneath it there, and fire burned that crust. There was no dirt burning; only these crusts were burning,-the paste made out of the dextrine and the water. When I got out the first row, we mQved up the £ccond, and Dr. HE'hr took 1101d of thn hose then, and got into the second, and probably, or so it seems to me, he must have got It little too high or too low, ,and some water goot on top" and threw some of this dextrine off, and raised adWlt, and that stuff' liltmck the fire below, and that brought the explosion. · · · On the night of tlw 25th I was called at 11 o'clock. I was told the fire was there at 9 o'clock. I believe the engines and firemen put the fire out on the night of the 25th. On the moruing of the 26th there was one crust that was burning. I saw .that crust. I took a pail,-a tin pailt-and got water on that crust, and drowned it. · · · 'rhe pans were talteu out on the morning otthe 27th. They were not spoiled. It was cooked all right, britthe fire had been all 'over the, kil,n until [as far as] the top; and l\n top we found trays that was burnt, and there was nothing left but a little bit of CQllls;-what you get after you burn paper,-on the top of the, kiln."
Dr. Behr testifies: "When I opened the door there was not a sudden burst of fiame. The flame waR like It hal'd coal'fire bttrniJlg in Ii furnace: just a little flickering fiau;}e; n.,t like eharcoal. It was It clear llame. Two day" before there was It fire therl!, and we certainlY' thought Wil.ter would do away with all
AMERICAN STEAM BOILER IKS. CO. V. CHICAGO SUGAR REFINING CO.
301
t<'lldcney to ftlrtlu'r c':1tching fire. It was just like :1 aml I got it all over my boots. That was cleaned out. The accumulation that was left was very little, but it was enough to catch fire. It must have come from thespilling out of the pans as they were shoved in there. The starch is put iL there in a drr shape as powder. It does not become hard when heated. It can be changed into a dextrine at a high temperature, like they do it in Europe, and quickly changed; or by the use of l()w temperature, or by steam, like we do it, and take more time. After having had the experience, I can say now I could have prevented the explosion if I hadn't opened the kiln. If the fire could have been confined to the kiln only, the damage would have been slight. There would not have been any explosion. Hobbold notified me of the fire about six o'clock on the twenty-seventh of March, and I came down to the dextrine room, and had the kilns opened. There was a fire underneath, five or six or eight inches high, and underneath the coils of the pipes. Hobbold had played the stream from the extinguisher possibly about half a minute or so before I became unconscious. When I first noticed the fire under the pipes in the kiln, I directed Hobbold to put the water on the tire with the Babcock fire extinguisher. We had had an experience two days before in putting out a fire in that manner. I was not there. It was in the night, and they had put it out readily. I thought the easiest way to put it out was with the Babcock extinguisher. The explosion in the dextrine kiln originated from the fire. It was not sufficient to cause the destruction; but it was communicated then to the room above, and caused an explosion and destruction of the building. There must have been a second expiosiooin the rooms up stairs."
From the testimony and the findings it seems quite clear that the proximate and legal cause of the disaster was this persistent and dangerous fire, originating in the kilns, and progressing to a final destruction of the buildings, and that the explosion was a consequence of the fire, marking a stage in its progress. After the explosion the testimony shows that the fire continued, destroying the debris of the building; so that the entire result is traceable to the fire in the kilns as the efficient cause. There is nothing more common, when a fire is once in progress, than for explosions to take place as a result of the fire, and as a part of it. These explosions may add very materially to the destruction of property, but it would be to lose sight of a plain principle to attribute the loss in such cases to the explosion as the proximate cause. The explosioll may be the proximate cause in the literal sense of its being the next, nearest, or immediate cause, but not in the legal sense of being the real and efficient cause, where there is a concatenation of causes and effects, each successive effect becoming in turn a cause. The rule applicable here is the one laid down by Mr. Justice Strong in Insurance Co. v. Boon, 95 U. So 117. "The prox.imate cause is the efficient cause,-the one that necessarily sets the other causes in operation. The causes that are merely incidental or instruments of a superior or controlling agency are not the proximate causes and the responsible ones, though they may be nearer in time to the result. It is only when the causes are independent of each other that the nearest is, of course, to be charged with the disaster." Here the fire was the cause of the explosion, which played its full share in producing the wreck, the.fu,-e again getting in its work after the explosion took place. As was said by Mr. Justice Cushing in the leading case of Scripture v. Insurance Co., 10 Cush. 356:
802
FEDERAL REFOR'rER,
"If. then, :acombustlble SUbstlince1n 'the process of combustion produces 'explOsion 'also,U is not easy to perceive why, of the two diverse but concurrent results of the combusti<n11 the one should be ascribed to fire any lesl!l' rthllilthe other. The plain ,fact' here Is the application of fire to So stanbe'susceptibll.' of Ignitlon,the consequent ignition of that substance, and: immediate damage to' the l)temises thereby. It Is no sufficil.'nt answer to say that some' of the phenomena produced are in the form of explosioni" All the effects,whatever:,they may be in form, are the natural results of the combustion of a combustible substance; and, as the combustion is the action of fire, this must be, held t(} be the proximate and legal cause of all the damage done to the premises of the plaintiff."
Nor is it any answer to say that the explosion would not have happened if the fire had been better managed, and the door of the kiln beell kept closed. The attendants, perhaps, did not choose the hestand safest method of extinguishing the flames, but they acted, in good faith, and thought they were doing the best that could be done. Suppose a fire had caught in any other place inside the building, and in trying to extinguish it an attendant had, in the,e:x:citement of t\le moment\ cau.ght up a bucket of crude petroleum, supposing it, to be water, and had ,cast the contents upon the flames, and ian explosion had resulted, destroying the building, there could be no question in such a case but that a fire insurance company would be liable as for a loss by fire, although it might be :reaooned that, but for such mismanagement, the fire might have 'This case is not different in principle from the one suppdsed. 'In either the controlling cause of the loss is the fire. If;, the explosion was the ,immediate cause of the greater damage,'the fire was the cause of the explosion, the cause of the cause.' [twill frequently happen in the case of afire that the greater :part of the damage is caused by water applied in efforts to extinguish the flatnesiyet it has always been held that the legal and efficient cause of such damage is the fire, and insurers against ftreare,held for it. The rule laid down by the court in Scripture v. Insurance' 00. is the one that has' been generally followed, and is applicable here, namely: "Thatwh'ere the effects produced are the immediate results of 'the action of a burD.ing sUbstance in contact with a building, it is Immaterial whether these resuJtlil' ,manifest themselves in the form of combustion or explosion or both CQmblned. In either cftse the damage occurring is by the action of fire, covered by the ordinary tenns of :t policy against loss by fire."
This pl'inciple has been frequently, and we think generally, acted upon since. ,It governed in the case of Washburn v. Insurauce Co., 2 Fed. iRep. 304, decided by Judge Swing. To the same effect are W ashbnrnv;. Insurance 00., ld. 633, 2 Flip. 664, decided by Mr. Justice SWl1yneof the supreme court; Washburn v. Artisans' Ins. Co.,Samev. Pennsylvania Ins. Co., (Cir. Ct. W. D. Pa.) 9 Pittsb. Leg. 'J. (N. S.),,55..:These decisions, though made in the circuit courts. have never been overruledJ and are sound in principle. The same principle'i$ 'recognized and adopted by the best text writers on the subject·. Philips, in his work on Insurance, (section 1097,) says "the 'makim' 'causa proxima spectatur,'" affords no help in these cases, but in fact is fallacious; for, if two causescoilspire, and one
AMERICAN STEAM BOII,ER INS. CO. tI. CHICAGO SUGAR REFINUW CO.
303
must be chosen, the more scientific inquiry seems to be whether one is not the efficient cause, and the other merely instrumental or merely incidental, and not which is nearest in place or time to the consummation of the catastrophe. And at section 1132, he says: "In case of the occurrence 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 inactivity at the con· summation of the disaster." The rule is well stated by the supreme court of Michigan in Brady v.Insurance Co., 11 Mich. 425. They say: "This contract (.f insurance is one of indemnity against loss by fire, and the whole lOEls of which the fire is the actual cause is within its terms to the extent of the inrlemnitypromised. Much is said by judges of the proximate and remote cause of the loss, and the distinction was very elaborately diBcussed by counsel in the present case; but, after careful consideration, I must confess tlmt to my mind the word 'proximate' is unfortunately used, and serves often to mislead the inquirer, and to produce misapprehension of the real mle of law. That which is the actual cause of the loss, whether operating directly Or by putting intervening agencies-the operation of which could not be reasonably avoided-in motion, by which the loss is produced, is the cause to which such loss should be attributed. If, in tlle effort to extinguish fire, property is damaged or destroyed by water, the water. may be. said to be the proximate cause of the injury or destruction: yet in no just sense can it be said to be the actual cause. That was the fire. The fair and reasonable Interpretation of a policy of insurance aglilnst loss by fire will include within the obligatiou of the insurer every loss which necessarily follows from the occurrence of the fire, to the amount of the actual injury to the subject of the risk, whenever that injury arises directly and immediately from the peril, or necesSllrily from incidental and surrounding circum· stances, the operation and influence of which could not be avoided."
In Insurance Co. v. Foote, 22 Ohio St. 340, the same principle is carried out. There the action was upon a :flre insurance policy which provided that the company should not be liable for any loss or damage occasioned by or resulting from any explosion whatever, whether of steam, gunpowder, camphene, coal oil, etc. It appeared that an explosive mixture of whisky vapor and atmosphere had come in contact with the :flame of a gas jet, from which it ignited, and immediately exploded, whereby a fire was set in motion, which de· stroyed the property. It was justly held that the explosion was the cause of the loss, and that the company was not liable. The court say on page 349 that: "It is true that the explosion was caused by a buruing gas jet, but that was not such a fire, as contemplated by the parties. as the peril insured against. The gas jet, though burning, was not a destructive force, against the immediate effects of which the policy was intended as a protection. although it was a lJosslble means of putting such destructive force in motion; it was no more the peril insured against than a friction match in the pocket of an incendiary." .
This was but carrying out the principle adopted in all the cases that we must look to the efficient or proximate cause to determine the responsibility for the disaster. And on page 351 the court say: "That a loss other than by combustion, resulting from an explosion, when the explosion itself is caused by a destructive tire already in progress, comes within the general risk of a policy against fire only, is a doctrine not only reasonable in itself, but is sustained by aulliority."
304
See, also, Waters v. Ins-qrance Co., 11 Pet. 225, opinion by Judge Story; Scripture v.Insurance 00" 10 Oush. 357; Millaudon v. Insurance 00., 4 La. Ann. 15; Insilrance 00. v. Oorlies, 21 Wend. 367. The conclusion we have reached is that the policy sued upon con· tains no indemnity against loss by fire, and that the damage to the premises of the defendant in error was caused by fire, and that the loss was properly a fire loss. Judgment reversed, and the cause remanded, with directions to the circuit court to enter judgment of no cause of action, and for costs in favor of the plaintiff in error. Mr. Justice HARLAN is not present, but he participated in the hearing ,and the decision this case, and concurs in this opinion.
DAI.BJ'JATTIE: S'rFJAMs}np CO., Limited, v. CARD.
).' ' (District Court,E. D. South CarDIum. July 14, 1893.) BBIPPINa-:.,..(mARTER
, steamer not arrive at her port and be ready in all respects for this charter to commence on or before February 15th, 1892." It was fui1:herprovided that thf' charter should not commence until the morn"lng after. the steamer was ready to receive cargo at the. place of loading, and eustnmary written notice thereof had been given before noon on the day ttie steamer was ready. On lJ'ebruary 13, 1892, the steamer entered the port ofChllrleston, .and w(,'Ut to quarantine. On the forenoon of that day her'lllasterreported her arrivnl to the ('!l:trterer, who answered that the master' had repol't<>d too late, and the charter was canceled. On the nfternqolJ, of the 13th the steamer came up to the city, and was assigned a ,bert;h., py a with the Imowledge of the charterer. There she on the 14th (Sunday) and 15th. On the forenoon of the 15th her 'master agllin notified the charterer that he was ready. Helrli. that the charterer had no right to cancel the charter.
A..' charter party prov.lded for. cancellation by tbe charterer, "shcmld the
P ARTY-CANCELL'\'l,'IpN.
In .Libel by the Dalbeattie Steamship Oompany, Dimit· ed, againlilt H. St. Julian Oard, doing business under name and style of Henry. Oard & Son, for breach of charter party. Decree for,libelant. Bryan & Bryan, for libelant. J. N. Nathans, for respondent. SIMONTON,· District Judge. The steamship Dalbeattie, under -eharter t6Henry Card & Son, entered the port of Charleston 13th F¢brullry, 1892,in the forenoon. She went to tbe quarantine station, about two miles from the city. On the. morning of 13th February, 1892, in the forenoon, her master, in person, reported ller ;lrrival to Henry Oard & Son, charterers, and to the East Shore TeI'IllinalOompany. He had been informed by letter that his vessel had. been. s'llbchartered, to that cOI\1pany. The agent of the company referred him to Henry Card &. Son for an answer to Ms notice. The answer, in effect, was ;fJ;l.at he had reported too late, and that the charter was canceled. On the afternoon of 13th February, at about 4 o'clock, the Dalbeattie came up to the city