Eppens, Smith & Wiemann Company, Appellant, v. The Hartford Fire Insurance Company of the City of Hartford, Respondent

Eppens, Smith & Wiemann Company, Appellant, v. The Hartford Fire Insurance Company of the City of Hartford, Respondent. Insurance—recovery where a building before being burned was shattered by an explosion in a neighboring building •—pi'oper cha/rge to the jury in such a ease. In an action brought upon a policy of Are insurance it appeared that the policy contained the following clause: “This company shall not be liable for loss caused directly or indirectly by invasion, * " * or (unless fire ensues, and, in that event, for the damage by fire only) by explosion of any kind, or lightning; but liability for direct damage by lightning may be assumed by specific agreement hereon. If a building or any part thereof fall, except as the result of fire, all insurance by this policy on such building or its contents shall immediately cease.” The plaintiff gave evidence tending to show that certain insured machinery was destroyed by fire while located in a building known as the Fahys building, situated on Warren street, in the city of New York. Prior to the time when the fire was discovered in the Fahys building, a building known as the Tarrant building, located on the opposite side of the street, was burning. Several explosions occurred in the Tarrant building during the progress of the fire. Testimony was given on the part of the plaintiff tending to show that no part of the Fahys building had fallen as a result of these explosions prior to the destruction of the insured property by fire, and, on the part of the defendant, tending to show that one or more walls of the building containing the insured property, or a substantial part thereof had fallen before the fire in that building thus presenting an issue of fact on this question. At the close of the trial the court submitted the following question to the jury: “ Did the heavy explosion in the Tarrant Building on October 29,1900, shatter or destroy, or cause to fall, a substantial part of the front or Warren Street wall of the Fahys Building, occupied by the plaintiff, before the destruction of the insured property by fire?” and instructed them that if they answered it in the negative the plaintiff was entitled to recover, but that if they answered it in the affirmative the defendant was entitled to a verdict. At the close of the charge, the court, over the plaintiff's objection, instructed the jury as follows : “In other words, even though there was fire in the Fahys Building, still if the front or Warren Street wall of the Fahys Building, or a substantial part thereof was shattered before fire had consumed this property, the verdict must be for the defendant.” The jury answered the question in the affirmative, and the court directed a verdict in favor of the defendant. Held, that although the testimony on one side tended to show that no part of any wall of the Fahys building had fallen before the fire in that [building, and on the other that a substantial part of the Warren street wall had fallen, yet the jury were not bound to accept the testimony upon either side literally; that it might well be that the wall of the Fahys building was shattered and still remained standing and that no substantial part of it fell until after the destruction of the property insured by fire; That it might also be that the wall of the Fahys building was weakened and cracked in consequence of the explosions in the Tarrant building, and that it subsequently fell more readily from the heat of the fire within the Fahys building; That, in either of the cases mentioned, the plaintiff would be entitled to recover; That, in either case, the jury might well have understood from the question and charge that the plaintiff would not be entitled to recover under those circumstances; That the judgment in favor of the defendant should, therefore, be reversed. Appeal by the plaintiff, the Eppens, Smith & Wiemann Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 2d day of May, 190-1, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 28th day of April, 1904, denying the plaintiff’s motion for a new trial made upon the minutes. William B. Ellison, for the appellant. Michael H. Cardozo, for the respondent. [MAJORITY — Laughlin, J.:] Laughlin, J.: The plaintiff owned certain machinery which was in the Fahy’s building situate at Nos. 103 and 105 Warren street in the city of New York. The defendant insured the machinery against fire, issuing a standard form policy. The plaintiff brought this action upon the policy to recover for the loss of the property insured, alleging that it was destroyed by fire. The plaintiff gave evidence tending to show that the machinery which' was insured was destroyed by fire. Prior to the time that fire was discovered in the Fahvs building, fire had started and was raging in the Tarrant building on the opposite side of Warren street and a little to the east. Several explosions occurred in the Tarrant building during the progress of the fire. Testimony was given on the part of the plaintiff tending to show that no part of the Fahys building containing the machinery had fallen as a result of these explosions prior to the destruction of the insured property by fire, and, on the part of the defendant, tending to show that one or more walls of the building containing the insured property or a substantial part thereof had fallen before the fire in that building, thus presenting an issue of fact on this question. The policy provided among other things as follows: “ This company shall not be liable for loss caused directly or indirectly by invasion, insurrection, riot, civil war, or commotion, or military or usurped power, or by order of any civil authority; or by theft; or by neglect of the insured to use all reasonable means to save and preserve the property at and after a fire or when the property is endangered by fire in neighboring premises; or (unless fire ensues, and, in that event, for the damage by fire only) by explosion of any kind, or lightning; but liability for direct damage by lightning may be assumed by specific agreement hereon. “ If a building or any part thereof fall, except as the result of fire, all insurance by this policy on such building or its contents shall immediately cease.” At the close of the testimony counsel for the defendant first moved for a direction of a verdict, and, upon the denial of that motion, he requested the court to present a specific question to the jury pursuant to the provisions of section 1187 of the Code of Civil Procedure. The question he suggested was: “ Did the heavy explosion in the Tarrant Building on October 29, 1900, shatter or destroy, or cause to fall, a substantial part of the front or Warren Street wall of the Fahys Building occupied by the plaintiff?'” Counsel for the plaintiff stated that he had no objection to the jury answering the question but that it was immaterial for the reason that it did not follow that the machinery was not burned even if the front wall did fall, and he suggested that the whole question as to whether the plaintiff had shown that its machinery was destroyed by fire be submitted to the jury. The court then amended the question and submitted it to the jury in the following form : “ Did the heavy explosion in the Tar-rant Building on October 29, 1900, shatter or destroy, or cause to fall, a substantial part of the front or Warren Street wall of the Fahys Building, occupied by the plaintiff, before the destruction of the insured property by fire ? ” In submitting it to the jury, the court instructed them that if they answered it in the negative the plaintiff was entitled to recover, but if they answered it in the affirmative the defendant was entitled to a verdict. At the close of the charge, pursuant to a request of counsel for the defendant, the court further instructed the jury on this point as follows: “ In other words, even though there was fire in the Fahys Building, still if the front or Warren Street wall of the Fahys Building, or a substantial part thereof was shattered before fire had consumed this property, the verdict must be for the defendant,” and to this instruction counsel for the plaintiff duly excepted. Although on the one side the testimony tended to show that no part of any wall of the Fahys building had fallen before the fire in that building and, on the other, that a substantial part of the Warren street wall had fallen, yet the jury were not bound to accept the testimony upon either side literally. It might well be that the wall was shattered and still remained standing and that no substantial part of it fell until after the destruction of the property insured by fire. The jury would very likely infer that the phraseology of the question in this regard was significant. The language of the policy on the point was plain and simple. Counsel for the defendant was not content to adopt the language of the policy in framing the question and we think the court was led into an error. Even though the wall may not have been razed by the explosion, yet it is probable that the glass in the windows was shattered and it may well be that the wall was cracked and weakened in consequence thereof, and that it subsequently from the heat of the fire within the Fahys building fell the more readily, yet under the terms of the policy this would not relieve the insurance company of liability and still the jury were given to understand that it would. It follows, therefore, that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event. Van Brunt, P. J., Patterson, Ingraham and Hatch, JJ., concurred. Judgment and order reversed, new trial ordered, costs to appellant to abide event.