Cook v. Continental Ins. Co.

After an attentive consideration of the points of decision involved, I have reached the conclusion that the judgment of the lower court in the case of Marie B. Cook v. Continental Insurance Company, a Corporation, should be reversed. I concur in the opinion and conclusion of Mr. Justice BROWN on rehearing in this case.

The contract involved in this case, like all other contracts, must be construed according to the intention of the parties. That intention must be found within the document itself, keeping in mind always the object or purpose the parties sought to accomplish by entering into an agreement of that character.

In the case at bar, a fire of dangerous proportions was raging in the city of Montgomery. It had traveled some 700 feet from its place of origin towards the insured building. The flames were jeopardizing the insured property. Sparks from this fire had set fire to the property several times and practically destroyed two automobiles that were in the insured building. The fire was beyond the control of the available fire fighting forces of Montgomery working with the ordinary and usual means of extinguishing fires. To check this fire, and save as much as possible of the insured property, as well as other property, the chief of the fire department dynamited a building near the insured building. This operation was successful. It seems to be conceded that the insured property and probably other valuable property was doomed to destruction by the fast approaching fire unless the resort to the use of explosives proved successful. The use of the dynamite damaged the insured property to some extent, and the insured seeks to recover the amount of that damage in an action on the policy.

This brief statement of the high points in the case, it seems to me, is sufficient to satisfy the judicial mind that the loss is covered by the policy. Had the firemen entered the building with a line of hose for the purpose of wetting it and preventing it bursting into flames, and, in the management or handling of the hose, damaged property included in this policy, I do not apprehend that it would be seriously contended that such damages *Page 169

would not be recoverable in an appropriate action. Had the force of the water from a line of hose damaged the insured building while the hose was being used to extinguish sparks and embers, I am of the opinion that we would all agree that the insurer would be liable under the policy for such damage. The fact that dynamite was used, instead of hose and water, or rather in addition to hose and water, cannot, in my judgment, alter the case. Evidently the chief of the fire department, a man of much experience in such matters, was of the opinion that this was the thing to do. The result speaks for itself and indicates that his judgment was good.

The use of the dynamite, under the circumstances stated, was not, in my opinion, an "intervening force started and working from a new and independent source," any more than the use of water or hose or chemicals would be an intervening force. Matters of that kind are incidents of the fire. Rather than being an "intervening force started and working from a new and independent source," it seems to me that they might be more properly classified as lawful agencies utilized in an emergency to check or break the force of the destructive agency — fire — that the parties attempted to insure against.

The parties must be held to have contemplated that the fire fighting forces of the city of Montgomery would, should the circumstances arise, do the wise, prudent, and reasonable thing to protect this, and all other property, from complete destruction by fire. This is what they were established for. That is why they are maintained at much public expense. Whenever a fire, therefore, causes those forces to damage property in an effort to preserve it from destruction by fire, the ensuing loss or damage, it seems to me, is "direct loss or damage by fire," and well within the terms of the policy of insurance, and therefore not within the exception, as contended.