this building are hurt by this water, we believe the injury would be regarded as a loss within the policy. (p) So it might be, if damage was done to goods in a building not on fire by leakage from the hose carried through the building to extinguish a fire in an adjoining building. If, however, there were no fire anywhere, and water were thrown, in the erroneous belief that there was a fire, a different question would arise; and we should say that the insurers would not be liable. (x) Policies of insurance on goods against fire sometimes require that the insured shall employ all possible diligence to save or remove their goods; but such a provision would be only a confirmation of the obligation which the law and public policy impose upon the insured. Hence, injury to or loss of goods which was caused by their removal from the danger of fire, is a common ground for a claim under a fire policy. (pp) But there must be a reasonable application of this rule; the goods must be removed from immediate danger, and not because of some fear of a possible or remote danger. And if the loss or injury could be attributed (p) Case v. Hartford Ins. Co., 13 Ill. 680; Hillier v. Alleghany Co. Ins. Co., 3 Barr, 470; Agnew v. Ins. Co., 7 Am. Law Reg. 168; Babcock v. Montgomery Co. Ins. Co., 6 Barb. 637; Scripture v. Lowell Ins. Co., 10 Cush. 356, per Cushing, J.; Lewis v. Springfield Ins. Co., 10 Gray, 159; Whitehurst v. Fayetteville Ins. Co., 6 Jones, 352; Geisek v. Crescent Ins. Co., 19 La. An. 297. (pp) Insurers were held for a loss by (x) When the policy insures "against all direct loss or damage by fire,' the word "direct" means merely "inmediate" or "proximate," as distinguished from "remote"; and, in such case, it is not necessary that any part of the insured property be actually ignited or consumed by fire. Ermentrout v. Girard F. & M. Ins. Co., 63 Minu. 305, 65 N. W. 635. Damage to the interior of a boiler of a steam-tug, occasioned by overheating from the furnace fires owing to absence of water in the boiler, and not the result of fire outside the furnace, is not such damage as is contemplated under a policy of fire insurance. American Towing Co. v. German Fire Ins. Co., 74 Md. 25, 21 Atl. 553. See note to Gilson v. Delaware & Hudson Canal Co. (Vt.), 36 Am. St. Rep. 802, 857. As to the ignition of soot in chimneys, a distinction is, however, made between a fire intentionally lighted therein and maintained for a useful purpose in connection with the occupation of a building and a larceny, in Witherell v. Maine Ins. Co., 49 Me. 200. See also, where the insurers were held for a loss on goods removed from imminent peril, although the store from which they were removed was never reached by the fire. White v. Republic Ins. Co., 57 Me. 91. See also Stanley v. Western Ins. Co., L. R. 3 Ex. 71; Balcstracci v. Firemen's Ins. Co., 34 La. An. 844. fire which starts from soot in its upper part without direct human agency; and if soot set on fire from a stove, causes both soot and the chimney linings to fall and obstruct the draft, the injury from smoke so caused is a "loss or damage by fire." Way v. Abington Mut. F. Ins. Co., 166 Mass. 67, 43 N. E. 1032. See Willow Grove Creamery Co. v. Planters' Mut. Ins. Co., 77 Md. 532, 26 Atl. 1024; Waterbury v. Dakota F. & M. Ins. Co., 6 Dak. 468, 43 N. W. 697; Cannon v. Phoenix Ins. Co., 110 Ga. 563, 35 S. E. 775. The same is true of an injury to machinery in a part of the building not reached by the fire, when, both building and machinery being insured against fire, the fire is caused by the short circuit of the electric current, the building being used for generating electricity for electric lighting. Lynn Gas & Electric Co. v. Meriden Ins. Co., 158 Mass. 570, 33 N. E. 690. to the want of even so much care as could be given under such circumstances, the negligence, and not the fire, would be regarded as the proximate cause, and the insurers would not be liable. (q) (x) Insurers are liable for the loss caused by the blowing up of buildings to arrest the progress of a fire, when that pre- *448 caution was justified by the circumstances. (r)1 And this was held, where a house on fire was blown up by gunpowder, and the policy provided that the insurers should not be liable for a loss from the explosion of gunpowder; because this provision was held to exclude only fire originating from an explosion of gunpowder. (s) But in another case, where the policy excluded any loss occasioned by the explosion of a steam-boiler, and by reason of such explosion the building was set on fire, the insurers were held not liable, although the fire was the proximate cause of the loss; because the loss was directly and wholly occasioned by the explosion. (t) We are not aware that general average claims or provisions are ever inserted in American fire policies, although they are said to be in English policies; but the principle of general average may have some application in this country. In one case where insurance was effected on a stock of goods in a certain store, and, an adjoining store being on fire, the insured, with the consent of the president of the insurance company, bought some blankets. and spread them on the outside of the store where it was exposed to the flames, the building was saved, but the blankets were ruined. The assured claimed to recover the entire expense. The (7) See Case v. Hartford Ins. Co., 13 Ill. 676; Babcock v. Montgomery Co. Ins. Co., 6 Barb. 640; Hillier v. Alleghany Co. Ins. Co., 3 Barr, 470; Agnew v. Ins. Co., 7 Am. Law Reg. 168, affirmed Independent Ins. Co. v. Agnew, 34 Penn. St. 96; Tilton v. Hamilton Ins. Co., 1 Bosw. 367; Webb v. Protection Ius. Co., 14 Mo. 3. (r) City Fire Ins. Co. v. Corlies, 21 Wend. 367; Pentz v. Receivers of Etna Fire Ins. Co., 3 Edw. Ch. 341, 9 Paige, 568; Gordon v. Rimmington, 1 Camp. 123. (s) Greenwald v. Ins. Co., 7 Am. Law Reg. 282. The clause was construed to mean "fire originating from an explosion of gunpowder.' (t) St. John v. American Ins. Co., 1 Duer, 371, 1 Kern. 516. 1 As to the risks excluded by a proviso against liability for loss by "invasion," "insurrection," "military or usurped power, see Boon v. Etna Ins. Co., 40 Conn. 575, reversed in 95 U. S. 117; Harris v. York Mut. Ins. Co., 50 Penn. St. 341; Portsmouth Ins. Co. v. Reynolds, 32 Gratt. 613. (x) Insurance against "theft following upon actual forcible and violent entry upon the premises" relates to an entry effected by real violence or force, and not by stealth. George v. Goldsmiths', &c. Ins. Ass'n, [1899] 1 Q. B. 595; [1898] 2 Q. B. 136. Under a provision that the insurer should not be liable for theft at or after a fire, it was held that theft, as a defence, should be specifically set up in the answer, and that setting out the policy was not enough. Hong Sling v. National Ass. Co., 7 Utah, 441, 27 Pac. 170. company contended, that if liable at all, it was only for the proportion which they had at risk upon the policy, taken in connection with the store, of which the plaintiffs had a lease for ten years, and the value of the stock over and above the sum insured upon it; and the court held that they were only liable for this amount. (u) It is common for policies against fire to provide that the insurers may elect either to pay for damages in money or to repair or rebuild. And it has been held that if insurers under this provision elect to rebuild, this converts the contract of insurance into a building contract; and if then they do not rebuild, the damages for their failure are not limited by the amount insured, but must be the sum required to erect a building of equal value with that insured. (uu) * C. Of a Loss caused by the Negligence of the Insured. There is this difference between marine policies and fire policies. The perils against which marine policies insure are *449 generally, although not always, such as could not be averted by any care or skill which could reasonably be demanded; whereas, the great majority of fires are caused by the negligence of somebody, and very commonly by the negligence of some of the family or servants of the insured. It is to guard against this very risk, that fire policies are made; and it has been held, that insurers are liable for a fire caused not only by persons employed by the insured, but by his own negligence. (v) (x) In (u) Welles v. Boston Ins. Co., 6 Pick. 182. It was also contended, that the property in the neighborhood ought also to contribute; but the court held, that the contribution must be limited to the building and the property therein immediately saved. (uu) Morrell v. Irving Ins. Co., 33 N. Y. 429; Beals v. Home Ins. Co., 36 N. Y. 522. See also Wynkoop v. Niagara Fire Ins. Co., 91 N. Y. 478; Fire Association v. Rosenthal, 108 Penu. St. 474. (v) In Shaw v. Robberds, 6 A. & E. 75, 83, Lord Denman, C. J., said: "One argument more remains to be noticed, viz., that the loss here arose from the plaintiff's own negligent act in allowing the kiln to be used for a purpose to which it was not adapted. There is no (x) The insurer is not liable for the destruction of the property by the wilful doubt that one of the objects of insurance against fire, is to guard against the negligence of servants and others; and, therefore, the simple fact of negligence has never been held to constitute a defence. But it is argued that there is a distinction between the negligence of servants and strangers, and that of the assured himself. We do not see any ground for such a distinction, and are of opinion that, in the absence of all fraud, the proximate cause of the loss only is to be looked to." This doctrine is now well-settled law in this country. Patapsco Ins. Co. v. Coulter, 3 Pet. 222; Columbia Ins. Co. v. Lawrence, 10 Pet. 517, 518; Waters v. Merchants Ins. Co., 11 id. 213, 225; Perrin v. Protection Ins. Co., 11 Ohio, 147, overruling Lodwicks v. Ohio Ins. Co., act of the insured himself in setting fire to it, not for the purpose of avoiding a either case the fire would be regarded as the proximate cause of the loss, and the negligence as the remote cause. It may be said, therefore, that the negligence of the insured, which is but an imperfect ground of defence, even in marine policies, is almost none in fire policies. In a case in Massachusetts, the insurers admitted the loss, and that a fraudulent design to set fire to the building was not imputed to the plaintiff, and offered to show that the building insured was destroyed through the gross negligence and carelessness of the plaintiff, and through his gross misconduct. The court below ruled, that evidence to prove such facts was not material; but the Supreme Court, declaring that they could not say that negligence could not be such as to discharge the insurers, ordered a new trial. But the court, in their decision, so described the negligence which alone would have this effect, that there was no new trial; the insurers paying the loss, with some abatement. (w) It is quite certain, that policies against fire are contracts only between the insured and the insurer, and do not pass to any other party without the consent of the insurers. (x) If, therefore, before 5 id. 433; St. Louis Ins. Co. v. Glasgow, 8 Mo. 713; Mathews v. Howard Ins. Co., 13 Barb. 234, overruling Grim v. Phoenix Ins. Co., 13 Johns. 451; Hynds v. Schenectady Co. Ins. Co., 16 Barb. 119; St. John v. American Ins. Co., 1 Duer, 371; Gates. Madison Co. Ins. Co., 1 Seld. 469; Copeland v. New England Ins. Co., 2 Met. 432; Butman v. Monmouth Ins. Co., 35 Me. 227; Catlin v. Springfield Ins. Co., 1 Sumner, 434; Henderson v. Western Ins. Co., 10 Rob. La. 164; National Ins. Co. v. Webster, 83 Ill. 470; Germania Ins. Co. v. Sherlock, 25 Ohio St. 33; Jameson v. Royal Ins. Co. Ir. R., 7 C. L. 126; Enterprise Ins. Co. v. peril of a worse kind, but with the intention of simply effecting its destruction. Ritter v. Mutual Ins. Co., 169 U. S. 139, 153, 18 S. Ct. 300, 42 L. Ed. 693; Pool v. Milwaukee Mechanics' Ins. Co., 91 Wis. 530, 65 N. W. 54. A single negligent act of building a stove fire by adding a halfpint of kerosene oil, whereby the building is destroyed, is not an "increase of hazard." Angier v. Western Ass. Co., 10 Parisot, 35 Ohio St. 35; Mickey v. Burlington Ins. Co., 35 Iowa, 174. (w) Chandler v. Worcester Ins. Co., 3 Cush. 328. In Johnson v. Berkshire Ins. Co., 4 Allen, 338, it was found that the fire was caused by the act of the insured; that there had been a want of ordinary care, judgment, and discretion on his part, but that he had not been guilty of recklessness and wilful misconduct. Held, that the insured was entitled to recover. (x) Tate v. Citizens Ins. Co., 13 Gray, 79; Granger v. Howard Ins. Co., 5 Wend. 200; Lane v. Maine Ins. Co., 3 Fairf. 44; Morrison v. Tennessee Ins. Co., 18 Mo. 262; Rollins v. Columbian Ins. Co., 5 So. Dak. 82, 71 N. W. 761, 66 Am. St. v. the loss occurs the insured alienates the whole of his interest in the property, he loses nothing by the fire, and has no claim for any loss. (y) And if he alienates only a part, his claim is in proportion to the interest he retains. (2) But when a loss occurs, it vests in the insured a right to indemnity. This right is assignable, and an assignee for value may enforce his claim against the insurers, (a) although it may be necessary to bring the action in the name of the insured. But a mere assignment or transfer of the premises after a loss, does not of itself transfer the right of indemnity for the previous loss, unless the contract shows this to have been the intention of the parties. Our policies against fire very commonly provide expressly that an assignment either of the property or the policy shall avoid the policy. If this prohibition covers in its terms only a transfer of the interest of the insured, it would seem that this prohibition is not extended by its terms to the contract of insurance. (b)(∞) Some recent policies contain a provision prohibiting a transfer of his claim by the insured after a loss occurs; and then make such a transfer an avoidance of the policy. It has been held, that the policy of the law makes such a restriction upon the power of transferring a vested right itself void. (c) But it has * 451 * Foster, 204. This doctrine was early (y) Carroll v. Boston Ins. Co., 8 Mass. 515; Wilson v. Hill, 3 Met. 66. (2) Etna Ins. Co. v. Tyler, 16 Wend. 385, 401. Brichta But see (a) Wilson v. Hill, 3 Met. 69; v. N. Y. Ins. Co., 2 Hall, 372. Lynch v. Dalzell, 4 Brown, P. C. 431. (b) Carpenter v. Providence Ins. Co., 16 Pet. 502; Ferree v. Oxford Ins. Co., 67 Penn. St. 373. Where a policy issued by a mutual fire insurance company contained this clause: "The interest of the assured in this policy is not assignable without the consent of said company in writing; 1 Such words are construed as meaning voidable by the insurer. &c. Ins. Co., 75 Me. 196. W. (x) In general consent to a transfer of the policy is a consent to a transfer of the insured property. Small v. Westchester F. Ins. Co., 51 Fed. 789; New Orleans Ins. Ass'n v. Holberg, 64 Miss. 51, 1 So. 5. The insurer's written receipt for an assignment does not constitute an acknowledgment of liability to Grant v. Eliot, the assignee. Morrill v. Manhattan L. Ins. Co., 183 Ill. 260, 55 N. E. 656. Upon the destruction of the insured property the policy becomes a mere chose in action and may be assigned as such. Moffitt v. Phenix Ins. Co., 11 Ind. App. 233, 38 N. E. 835. |