# Cook v. Continental Ins. Co. > Supreme Court of Alabama · November 1, 1928 · 220 Ala. 162 URL: https://www.frixlaw.com/law-library/cases/3229686 ## Case - **Full name:** Cook v. Continental Ins. Co. - **Court:** Supreme Court of Alabama - **Decided:** November 1, 1928 - **Citations:** 220 Ala. 162; 124 So. 239; 65 A.L.R. 921; 1928 Ala. LEXIS 514 - **Precedential status:** Published - **Opinion:** Addendum - **Judges:** Anderson, Bouldin, Brick-En, Bricken, Brown, Foster, Gardner, Sayre, Thomas - **Cited by:** 19 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3229686 ## Opinion text Judge BROWN'S opinion, aside from general propositions and irrelevancies, invokes the supposed authority of Wheeler v. Phenix Ins. Co., 203 N.Y. 283 , 96 N.E. 452 , 38 L.R.A. (N.S.) 474, Ann. Cas. 1913A, 1297, and Bird v. St. Paul Fire Marine Ins. Co., 224 N.Y. 47 , 120 N.E. 86 , 13 A.L.R. 875 . There is no use to refer to gases in which the policies were differently worded. It was to avoid the consequences supposed to flow from such policies that the standard policy — the policy in this case — was adopted. The Wheeler Case is said to be to the contrary of the Hustace Case. The Court of Appeals of New York does not appear to think so, for it has said: "There is nothing in that case [the Hustace Case] which is in conflict with the views that we have expressed in this case." And then the court said that the trial court in the Wheeler Case may have been misled by some expression in the Hustace Case. So far as I am able to learn, the law of the Hustace Case is still the law of New York. The court in the Wheeler Case was of opinion "that when a negligent or hostile fire exists within the insured premises and an explosion results therefrom under such circumstances as to constitute the fire the proximate cause of the loss and the explosion merely incidental the company becomes liable upon its policy for the loss resulting therefrom." The court thus shows its consideration of proximate cause in determining the meaning of the policy, and in that case plaintiff was suing for the loss of his building caused by a fire and an explosion within the building. So in Bird v. St. Paul Fire Marine Ins. Co., the Court of Appeals of New York discourses at considerable length on the subject of proximate cause as affording a clew to the meaning of the policy, and quoted from a case decided by the House of Lords (Leyland Shipping Co. v. Norwich Fire Ins. Society, 118 Law Times, 120, 125) as showing that the subject of proximate cause affords the true method of approach to the question of the intention of the parties in entering into the contract of insurance. In the Bird Case plaintiff's canal boat was insured, as the Court of Appeals says, against the perils of the "Sounds, Harbors, Bays, Rivers, Canals and Fires, that shall come to the damage of the said boat." "There was no express exception of damage from explosion." The facts were that cars loaded with explosives caught on fire. The contents of the cars exploded. "This explosion," to quote again from the opinion of the Court of Appeals, "caused another fire, which in turn caused another and much greater explosion of a large quantity of dynamite and other explosives stored in the freight yard. The last explosion caused a concussion of the air, which damaged plaintiff's vessel about one thousand feet distant to the extent of $675. No fire reached the vessel, the damages being solely from the concussion caused by the second explosion." In conclusion the Court of Appeals used this language: "In this case, the facts are not disputed. The inferences to be drawn from them are not doubtful. The damage was not a loss by fire within the meaning of the policy." In Washburn v. Miami Valley Ins. Co. (C. C.) 2 F. 633 , the fire and the explosion were in the same building, as was the fact in the Wheeler Case. Reference is made in Judge BROWN'S opinion to the annotation following the case of Westchester Fire Ins. Co. v. Bell, 13 A.L.R. 883 . I quote the text on page 886: "The provision of the standard policy excepting loss by explosion is to the effect that the insurer shall not be liable for loss caused, directly or indirectly, by explosion of any kind, *Page 170 unless fire ensues, and in that event for damage by fire only." And on page 891 of 13 A.L.R., under the heading "Damage by explosion in neighboring building," appears the following: "It is generally held, where a policy insures against loss by fire, and provides against liability for loss caused directly or indirectly by an explosion of any kind, that the insurer is not liable, for losses occasioned merely by the concussion of an explosion which occurs in another building, although the explosion was caused by the existence of a fire" — citing cases from Colorado, Illinois, Kentucky, Louisiana, New York (Hustace Cases and others), Ohio, and Tennessee. "In Joyce on Insurance" — I quote from page 884 of 13 A.L.R. — "it is said: 'Insurers are liable upon a policy which contains a condition of this nature [i. e., excepting liability for damages by explosions of any kind] where fire originates in the insured premises and the fire produces an explosion which destroys the property. The entire loss in such a case is held to be a loss by fire.' Vol. 3, p. 2532." "Again, this author says: 'If the combustion and explosion are inseparably connected' " — as, I note, was the case in Wheeler v. Phenix Ins. Co., and Washburn v. Miami Valley Ins. Co., supra, and, as I think, was the case in Githens v. Great American Ins. Co., 201 Iowa, 266 , 207 N.W. 243 , 44 A.L.R. 863 , which has been cited as authority against the original opinion in the case now before this court — " 'if a combustible substance in the process of combustion produces explosion also, and fire is the agent throughout, and there is a loss by both fire and explosion, it is held that the whole damage is covered by a policy insuring against loss by fire.' Id. p. 2707." I have followed the theory of the two preceding paragraphs. And in the annotation following Githens v. Great American Ins. Co., 44 A.L.R. 863 , under the heading "damage by explosion in neighboring building," the test I have quoted from 13 A.L.R. 891 , is repeated with additional citation of adjudicated cases from Missouri and Texas. In the case here under consideration it would hardly seem to be necessary to say again that there was no claim for damages by combustion. The claim was for damage caused by concussion from an explosion in a building across the street, and not otherwise. It is stated in the opinion of Mr. Justice BROWN that I have construed the "explosive clause" most favorably to the insurer. My judgment is that the unmistakable meaning of the stipulation of the policy, which was quoted at the outset, excludes the possibility of recovery by appellant, and that the only favor indulged by the courts, in this or any other case, has been in the interest of the insured and has heretofore reached only those cases in which, fire and explosion occurring in the same building, it was impossible to allocate the loss due to the different causes, and therefore the insured has been allowed, notwithstanding the plain terms of the policy, to recover for the whole loss. But that is not this case. In this case the entire loss in suit was caused by explosion only. THOMAS and BOULDIN, JJ., concur in this view. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3229686. Public record. Not legal advice.