Page images
PDF
EPUB
[blocks in formation]

1815.

A policy of in. surance (a

gainst fire) is effected on the

house, the dif

of which were

heated by a chimney run

AUSTIN and Another v. DREWE.

JOVENANT on a policy of insurance against

COVE

fire, on the stock and utensils in the plaintiffs' stock and uten- sugar house. The declaration averred a damage sils of a sugar by fire on the 8th December, I 13. The defendferent stories ant pleaded, that the damage was occasioned by the negligence and improper conduct of the plaintiffs and their servants, in regulating and managing the fires in their sugar house; and that the stock and utensils were damaged by the smoke arising from such fires; without this, that they were ter, the heat is damaged by fire in the sugar house within the increased, by meaning of the policy.

ning up to the top. By the negligence of the plaintiffs'

servants, in omitting to

open the regis

considerably

means of which large quanti

ties of the su

gar are spoiled;

The plaintiffs were sugar bakers. The sugar but no damage house contained eight stories, in each of which were

was occasion

ed to any thing raw sugars undergoing preparation. In order to and no greater convey heat throughout the premises, there was a

but the sugar,

fire existed

nary occa

sions; held,

that this was

not a loss with

in the policy.

ordi- chimney which formed nearly one side of the house, along which a flue ran, for the purpose of communicating warmth to each room. In one of the stories was a register, which was shut at night, when the fires were extinguished. On the day when the damage took place, the plaintiffs' servant had lighted the fire in the morning without opening the register; by these means the several rooms were filled with sparks and smoke; the sugar was damaged by the excessive heat, and some of the syrup spoiled; the beams and cieling in the upper stories were blackened, and the walls a little blistered. No

damage of moment was occasioned to any thing but the sugar; there was no greater fire than was ordinarily used for the purposes of sugar baking, and no part of the substance of the premises was injured by fire.

Vaughan, serjeant, for the defendant, contended, that this was not a damage by fire within the meaning of the policy.

The Solicitor General, contrà.

GIBBS, C. J.-I am of opinion that this is not a loss within the policy. No greater fire existed than was necessary for the purposes of the business. By omitting to open the register, heat and smoke have been forced into the rooms where the sugars were preparing; the heat produced the mischief: no sensible damage resulted from the smoke and sparks, and the occasion which produced the excess of heat was not a fire against which the defendant had undertaken to indemnify the plaintiffs. The servants had neglected to open the register. What is this but a bad management of their own machinery? The fire is where it ought to be; no more than it ought to be. But it received a false direction by the irregular and improvident conduct of the plaintiffs' servants. As no substance, therefore, was taken possession of by the fire, which was not intended to be fuel for it; as the sparks and smoke caused no mischief, but as the damage arose from an excess of heat in the rooms, occasioned by the register being shut, I

1815.

AUSTIN and
Another

v.

DREWE.

1815.

AUSTIN and Another

v.

DREWE.

am of opinion, that the plaintiffs are not entitled to

recover.

The jury found a verdict for the defendant.

The Solicitor General, Lens, serjcant, and Gaselee, for plaintiffs.

Vaughan, and Copley, serjeants, and Tindall, for defendant.

[blocks in formation]

In the ensuing term the Solicitor General moved to set aside the verdict, but the Court concurred in the opinion of the Lord C. J. as expressed at the trial.

It is not to be concluded from this case that an insurer on a policy against fire is exempt from a loss occasioned thereby, on the ground that the servants of the assured have been careless or unskilful, and that the fire was occasioned by their negligence and misconduct. An insurer would un

questionably be answerable in such a case. The spirit of the decision of the present case is this: that there was no loss by fire, by whatever cause or misconduct produced. The injury arose from the misdirection of heat, occasioned by the unskilful management of the machinery in the sugar house. It was not, therefore, in any fair and reasonable construction of the policy, one of those accidents against which the defendant had engaged to indemnify the plaintiffs.

1815.

GREGG and Another v. SCOTT.

with

A license granted to a

ship to sail in

ballast from

London to Hol

country was at that time in a

land (which

state of hosti

lity) notwith

standing any

ed in his Ma

jesty's Order April 1809,

of Council of

CTION on a policy of insurance on the Jonge Grief, at and from London to her port of discharge in Holland, or the Ems. In the first count the interest was averred to be in the plaintiffs; and there were other counts averring it to be in one Wiger Harmens, who resided in Holland, and to whom, in fact, the vessel belonged. thing containThe loss was capture by a French privateer. The ship had been taken and the papers it; the first license, therefore, was lost; but a second had been obtained, and was produced. bore date the 5th July, 1810, and was granted the vessel on the petition of the brokers, who obtained the first license on a similar petition. The void. license was to the vessel to sail in ballast from London to Holland, &c. notwithstanding any thing contained in his Majesty's Order of Council of April, 1809. The petition, upon which the license was granted, was not produced.

held not to protect a ship

It

which was the

property of an

to

alien enemy.

An insurance,

had

therefore, on

The Solicitor General and Spankie, for the defendant, objected; that this license did not protect a vessel owned by an alien enemy at that time resident in Holland. It might be desirable to license neutrals; but belligerents were differently circumstanced. In 1810, the coast of Holland was in a state of blockade; we were then at war with that country; the object of the license VOL. I.

K

such vessel is

« PreviousContinue »