American Towing Co. v. German Fire Insurance

Alvey, C. J., delivered the opinion of the Court. This was an action on a policy of insurance-against loss by fire, issued by the defendant to the plaintiff, on the 3rd day of September, 1887, for the period of one year, and which was continued by renewal for a second year. By the terms of the policy the defendant, in consideration of $25 paid, caused the plaintiff to be assured to the amount of $2,500 on the steam-tug “Samson,” her hull, apparel, machinery, boiler, engine, fixtures and all appurtenances of every description, (with privilege to use the Chesapeake bay and its tributaries,) against all loss or damage to the same by fire, originating in any cause except invasion, foreign enemies, civil commotions, riots, of any military or usurped power whatever, for and during the term of one year, &c. And by another clause in the policy, it is provided that “in case steam power is used in and about the property insured, and the boiler should burst, or any property insured is struck by lightning, or explosion occurs, this company is not liable, unless fire ensues, and then for the loss or damage by fire only.” There was a second policy held by the plaintiff upon the tug, issued by the Rochester German Insurance Com ³¹ pany, for $1,500, making the total amount of insurance $4,000; and hoth policies were running at the time of the occurrence of the fire, in August, 1889; and hoth companies being sued, the cases were, by agreement, tried together, and the amount of damage awarded by the verdict was duly apportioned, according to the terms of the policies.

It appears that the steamer “'Samson” was a large iron ocean tug, with wooden deck and -house, valued at about $25,000. In August, 1889, while lying at a wharf in Georgetown, D. G., a fire occurred, whereby considerable injury was done to the wood work of the vessel, and the interior of the boiler was seriously damaged. According to the testimony on the part of the plaintiff, the total cost of repair of the damage occasioned by the fire was $3,392.86. Of this amount, the cost of repair of all the damage tmtside of the boiler, was about $1,200, and the balance of the total cost of repair was-for the necessary repair of the inside of the holler.

How the fire occurred seems to be involved in something Af a mystery. The fire occurred at night; and, according to the testimony of the engineer on.the tug, the fire in the furnace was banked, and the boiler well supplied with water at the time he retired for sleep about midnight of the 21st of August; though when the fire was discovered, about 4 o’clock of the morning of the 22nd of August, the boiler was entirely without water, and was very hot. Several expert witnesses were examined at the trial, who had.examined the boiler, and they gave it as their unqualified opinion, that, from all the apparent indications, the injury to the interior of the boiler was caused by the fire in the furnace in contact with the boiler, the latter being without water to protect it; “that the inside of the boiler was injured •entirely by being overheated, occasioned by the absence of water necessary to protect it.” The defendant, by ³² its duly authorised adjuster, offered to pay for all damage done by the fire outside of the furnace, but refused to pay for the injury done to the interior of the boiler, by the action of fire in the furnace, insisting that such injury was not embraced within the risk insured against. Eor all the injury done outside the boiler, the jury, under the instructions of the Court, awarded damages to the plaintiff, but not for the injury done to the interior of the boiler.

And the only question on this appeal is, whether the Court was right, in its instruction to the jury, in holding chat the injury to the interior of the boiler caused by the fire in the furnace, was not a damage contemplated by the parties to the policy. The Court instructed the jury, upon request of the plaintiff, that the latter was entitled to recover, although the jury might find that the fire was caused by or was the result of the negligence or carelessness of the agents of the plaintiff; and that, in estimating the amount of loss, the jury were not restricted to the amount claimed by the plaintiff in the proofs of loss furnished to the defendant; nor to the amounts mentioned in the report of certain referees shown in evidence. And by the fifth prayer of the plaintiff, the jury were instructed .that they could award to the plaintiff such a sum not exceeding $4,000, as they might find the plaintiff sustained, because of the injury or damage to the tug Samson by fire, with interest, &c.; and if they should find any such sum, they should find a verdict for five-eighths of said sum against the defendant, and a verdict for three-eighths of said sum against the Rochester Fire Insurance Company. This latter instruction was given in connection with an instruction granted at the instance of the defendant, to the effect, that if the jury should find from the evidence-that the damage to the interior of the boiler of the steam-tug was occasioned by the overheating of the boiler from the furnace fires, owing to the absence of ³³ water in the boiler, and was not the result of any fire ■outside of said furnace, then such damage was not the result of such fire as was contemplated by the parties under the policy of insurance, as one of the perils insured against, and that the plaintiff was not entitled to recover for such damage.

The terms of the policy in this case are such as are ordinarily employed in fire policies on steam vessels, where the risk is taken on the hull and all the machinery and ajjpurtenances, of the vessel. And it is conceded that for any injury done by fire to any part of the vessel, ■or her machinery, whether to the boiler or any other part, if the injury was done by ignition or heat