Probably, the rules prevailing in land policies against fire, that the insurers are liable for expenses incurred in arresting and pre fire, is damaged in the process by the unskilfulness of the operator, and his mismanagement of heat as an agent or instrument of manufacture, that is not a loss within a fire policy. This, we apprehend, is good sense and sound law." And the learned judge further remarks: "It may well happen that serious damage, within the scope of a fire policy shall be done to a building, or to its contents, by the action of fire in scorching paint, cracking pictures, glass, furniture, mantlepieces, and other objects, or heating and thus actually destroying many objects of commerce, and yet all this without actual ignition - that is, visible inflammation." This precise point, however, did not arise in the case. But in Case v. Hartford F. Ins. Co., 13 Ill. 676, it was expressly held, that the insurers were liable for the damage done in such a case. It seems well settled, on principle and authority, that underwriters are not liable for damage done by lightning, where there is no ignition, lightning not being fire. Kenniston v. Mer. Co. Mut. Ins. Co., 14 N. H. 341; Babcock v. Montgomery Co. Mut. Ins. Co., 6 Barb. 637, 4 Comst. 326. Nor are they liable for damage done by the explosion of a steam-boiler. Millaudon v. N. O. Ins. Co., 4 La. Ann. 15. So, where it was provided by the conditions annexed to a policy of insurance against fire, that the company should not be liable "for any loss occasioned by the explosion of a steamboiler, or explosions arising from any other cause, unless specifically specified in the policy," the company was held not liable, where fire, which was directly and wholly occasioned by an explosion, was the proximate cause of the loss. St. John v. Am. Mut. F. & M. Ins. Co., 1 Duer, 371, 1 Kern. 516. See also, Perrin v. Protection Ins. Co., 11 Ohio, 147; Montgomery v. Firemen's Ins. Co., 16 B. Mon. 427; Roe v. Columbus Ins. Co., 17 Mo. 301; McAllister v. Tenn. M. & F. Ins. Co., 17 Mo. 306. But an explosion caused by gunpowder is a loss by fire. It was so held in Scripture v. Lowell Mut. F. Ins. Co., 10 Cush. 356, after a learned and elaborate review of the authorities. The explosion was caused by the son of the tenant of the house putting a match to a barrel of gunpowder. The question is thus stated by Mr. Justice Cushing: "By the ignition of gunpowder within a dwelling-house, damage is done to the house, that damage consisting in part of combustion, and in part of explosion. Is the whole damage covered by a policy insuring against loss or damage by fire?"" The court held that it was. The law is laid down, as follows: "In the present case, there is no room for question concerning a series of causes, as whether primary or secondary, proximate or remote; for the agent is one and the same throughout, namely, fire. The causa was burning powder; the causa causans was a burning match; at each stage of causation it was the action of fire. Nay, to be exact, the burning of the gunpowder, like the burning of the match, was a succession of several complex acts of burning. Yet fire is the agent at each of these distinct stages of causation. Suppose there was a barrel of sulphur in the plaintiff's attic, instead of gunpowder; and this being ignited with a match, afterwards the fire had passed from the burning sulphur to the substance of the house. This would be recognized at once, as a case of fire. It does not change the legal relation of causes, to substitute a barrel of burning gunpowder for a barrel of burning sulphur. The only difference in the elements of the question is, that the gunpowder, when ignited, consumes with more rapidity than sulphur, and the combustion is accompanied or followed by explosion. Still, the agent is fire, though it acts in different ways upon the different successive subjects of its action, beginning with the match and terminating with the plaintiff's house." On page 363, the court said their venting fire, and, to some extent-it may be uncertain how far for injury sustained from such endeavors,2 as where goods opinion excluded "all damage by mere explosions, not involving ignition and combustion of the agent of explosion, such as the case of steam, or any other substance acting by expansion without combustion." But on page 364, several cases are stated as seeming to fall within the general rule of holding the insurers liable, where an explosion takes place without combustion, which is, nevertheless, the result of the action of fire, which would seem to render them liable for damage caused by the explosion of a steam-boiler. For other cases of explosion by gun-powder, see Waters v. Merchants' Louisville Ins. Co., 11 Pet. 213, 225; Grim v. Phoenix Co., 13 Johns. 451. 1 Thus, if a building is blown up with gunpowder by the public authorities, in order to stop a conflagration, the underwriters against fire are liable. City F. Ins. Co. v. Corlies, 21 Wend. 367; Phillips v. Protection Ins. Co., 14 Mo. 220; Pentz v. Receivers of Etna F. Ins. Co., 9 Paige, 568, 3 Edw. Ch. 341. In Welles v. Boston Ins. Co., 6 Pick. 182, blankets were put upon a building by the insured with the approbation of the insurer, while a fire was raging in the neighborhood, and the building and its contents were thereby saved from destruction, but the blankets were rendered worthless. The insured, the owner of the goods, paid for the blankets, and brought this action against his insurers. The latter admitted their liability for a part of the amount estimated upon the proportion they had at risk upon the policy, taken in connection with the store, of which the plaintiff had a lease for a term of years, and the value of the stock, over and above the sum insured upon it. And the court held that the underwriters were not liable for the whole value of the blankets, but only in the proportion named, and that the owners of other buildings, which were perhaps saved by the use of the blankets, were not obliged to contribute. 2 It is not yet quite settled on the authorities, how far the insurers are liable for goods damaged or lost while being moved from a building, through apprehension of its being burned by a conflagration then raging, and for the expense of so moving them. In Pennsylvania, it was held that they were not liable, where the fire at the time was four houses off. Hillier v. Allegheny Ins. Co., 3 Barr, 470. In Case v. Hartf. F. Ins. Co., 13 Ill. 676, the policy contained the following clause: "In case of fire or loss or damage thereby, or of exposure to loss or damage thereby, it shall be the duty of the insured to use all possible diligence in saving and preserving the property; and if they shall fail to do so, this company shall not be held responsible to make good the loss and damage sustained in consequence of such neglect." The store of the plaintiff, though not on fire, was in immediate danger of catching, and the circumstances were such that a neglect to remove the goods would have been gross negligence on his part. It was held that he was entitled to recover for all damage done, and expenses incurred. And the existence of such a clause does not seem to impose any greater obligations on the assured, than would exist without it. Firem. Ins. Co. v. May, 20 Ohio, 211. It seems very clear, that if the house should be burnt after the goods were taken out, the insurers would be liable for all damage done and expenses incurred, and there is no sound reason why the same rule should not apply, where the danger was such as to excite apprehension in the mind of a man of ordinary prudence. See Beaumont on Ins. 41. In Webb v. Protection Ins. Co., 14 Mo. 3, the policy contained a clause exempting the company from loss by theft; or any loss or damage by fire which might happen in case of an invasion, insurrection, or riot, &c. It was held, that the two clauses were independent of each other, and that the company were not liable for a loss are hurt by water from the engines, would apply to marine insurance against fire; always, however, with the proviso, that the insurers are not to be held responsible for losses not specifically insured against, unless they are the direct and immediate effects or consequences of a peril which is insured against. The risk does not cease on the ship or furniture, if during the voyage, any part of it is taken on shore in the ordinary course of events.2 But this rule does not apply to cargo which is taken on shore, for the purposes of barter.3 by theft, in case goods were removed to protect them from an ordinary fire, although the court were of opinion, that ordinarily the insurers would be liable for such a loss. In Agnew v. Insurance Co., Dist. Ct. Philadelphia, 7 Am. Law Reg. 168, the underwriter was held liable for a loss by theft, where the goods had been removed. See also, Babcock v. Montgomery Co. Mut. Ins. Co., 6 Barb. 637, 640, per Pratt, J. 1 In Case v. Hartford F. Ins. Co., 13 Ill. 676, 680, Turnbull, J., said: "Surely an injury to the goods by water thrown to extinguish a fire, would not be an injury to the goods by actual ignition, and yet no case can be found, where an insurance against damage by fire, has been held, not to extend to such a case." See also, Hillier v. Allegheny Co. Mut. Ins. Co., 3 Barr, 470, per Grier, J.; Agnew v. Insurance Co. Dist. Ct., Philadelphia, 7 Am. Law Register, 168; Babcock v. Montgomery Co. Mut. Ins. Co., 6 Barb. 637, per Pratt, J.; Scripture v. Lowell Mut. F. Ins. Co., 10 Cush. 356, 365, per Cushing, J. In Nimick v. Holmes, 25 Penn. State, 366, it was held, that where a vessel or its cargo takes fire without the fault of the crew, the damage done by the application of water or steam for the purpose of extinguishing the flames, and by tearing up part of the deck of the vessel, should be contributed for in general average. But there seems to be no reason why the insurer against fire should not be liable in such a case. 2 In Pelly v. Royal Exch. Ass. Co., 1 Burr, 341, during the voyage, in accordance with a usage of trade, the sails were taken on shore while the vessel was being repaired, and were burnt, and it was held that the insurers were liable. So, in Brough v. Whitmore, 4 T. R. 406, where provisions were lost under similar circumstances, the underwriter was held liable. 3 In Martin v. Salem Mar. Ins. Co., 2 Mass. 420, a vessel and cargo were insured "from Marblehead to one or more ports in the West Indies, for the purpose of selling the outward and purchasing a return cargo, and at and from thence to Marblehead.” The outward cargo was landed and sold, and the proceeds, in the form of specie, with which the homeward cargo was to be bought, were in the hands of the factor there, according to the usage of the trade, when the house was burnt and most of the specie lost. Held, the risk did not continue after the goods were landed. In Harrison v. Ellis, 7 Ellis & B. 465, a vessel and cargo were insured. The risk on the cargo was to continue till it should be discharged and safely landed. The policy also contained the memorandum: "with liberty to load, reload, exchange, sell, or barter, all or either, goods or property on the coast of Africa and African islands, and with any vessels, boats, factories, and canoes, and to transfer interest from this vessel to any other vessel, or from any other vessels to this vessel, in port or at sea, and at any ports or places SECTION V. OF LOSS BY PIRATES, ROBBERS, OR THIEVES. The usual insurance against these risks, renders the insurers liable for losses or damage arising from all such acts as amount to piracy or robbery; even, it is said, if they are committed by the crew, provided due care and diligence have been used to prevent them; as if there be a mutiny of the crew. To bring a loss she might call at or proceed to, without being deemed a deviation." It was held, that the underwriters were not liable for a loss occasioned, while part of the cargo was in a factory on the coast, and the vessel was engaged in loading native produce, by the factory and its contents being burned. 1 It is so stated by Chancellor Kent, 3 Comm. 303, citing Brown v. Smith, 1 Dow, 349. Mr. Phillips says, citing the same case: "Under the risk of pirates and rovers, or under perils of the seas, the insurers are liable for losses by a mutiny of the crew." 1 Phillips, Ins. § 1106. Mr. Arnould, 2 Vol. Ins. 817, says it seems the underwriters are liable in such a case, citing the same case, and adding: "In Dixon v. Reid, 5 B. & Ald. 597, such a loss was laid as loss by barratry, which seems the true mode of alleging it." An examination of the case of Brown v. Smith, will show, as we think, that this question did not, and could not arise. The insurance was against "barratry of the masters and mariners and all other perils, losses and misfortunes, that have, or shall come to the hurt, detriment, or damage of the said goods and merchandise and ship or any part thereof." It has not, therefore, been decided that mutiny is a piratical act. In Naylor v. Palmer, 8 Exch. 739, 22 Eng. L. & Eq. 573, insurance was effected on advances for the outfits, provisions, etc., of coolies, to be repaid upon the safe delivery of the emigrants at the port of destination in Peru. The insurance was against pirates, thieves, and all other the usual perils. On the voyage the coolies rose upon the crew, murdered part of them and the captain, took the ship, and sailed for land; on reaching which they left the ship and escaped. Pollock, C. B., said: "The act of seizure of the ship, and taking it out of the possession of the master and crew, by the passengers, was either an act of piracy and theft, and so within the express words of the policy, or, if not of that quality, because it was not done animo furandi, it was a seizure ejusdem generis, analogous to it, or to barratry of the crew, falling within the general concluding words of the perils enumerate-d by the policy." The case was affirmed in the Exchequer Chamber, Palmer v. Naylor, 10 Exch. 382, 26 Eng. L. & Eq. 455. In the case of McCargo v. New Orleans Ins. Co., 10 Rob. La. 202, where a cargo of slaves rose and took possession of the vessel, it was contended that the underwriters were liable on the ground that the act was a piratical one. The point was not determined by the court, the underwriters being discharged by reason of insurrection being excepted against. In Nesbitt v. Lushington, 4 T. R. 783, where a vessel laden with corn was forced by stress of weather into a harbor in Ireland, and a mob came on board, took the within the words of this clause, there must be violence, for without this there can be neither piracy nor robbery. But there may be theft without violence; and whether a loss by such theft would come within this clause, is not certain from the decisions. But the weight of American authority, upon the whole, would lead to the conclusion that insurance against "theft," or against "thieves," would make the insurers liable for a loss by larceny.1 command of the ship, and weighed anchor, by which the vessel was driven on a reef of rocks where part of the cargo was lost, and the rest the mob compelled the captain to sell to them at about three fourths of the invoice price, Lord Kenyon expressed an opinion that there might have been a recovery as for a loss by pirates, if the corn had not been insured against particular average. See also, generally, Dean v. Hornby, 3 Ellis & B. 180, 24 Eng. L. & Eq. 85. 1 It is laid down in all the early text-writers and authorities, that an insurer is not liable for losses by theft on board the vessel, on the ground that the master of the vessel is bound to take all the care of the goods in his power, and when they are stolen while in the vessel, it is considered as proceeding from negligent custody and not from accident. Roccus, note 42; Emerigon, c. 12, § 29, Meredith's Ed. p. 419. In this country, Chancellor Kent has followed the authorities above cited, 3 Comm. 303, and has been sustained by a decision in Tennessee, Marshall v. Nashville Ins. Co., 1 Humph. 99, where part of the goods were alleged to be stolen by persons connected with the boat on which they were shipped, and it was held on demurrer that the assured could not recover. In New York, on the other hand, the underwriters were held liable for a loss by simple larceny, while the boat was at a wharf. Atlantic Ins. Co. v. Storrow, 5 Paige, 285. And in Am. Ins. Co. v. Bryan, 1 Hill, 25, 26 Wend. 563, it was held, both by the Supreme Court and by the Court of Errors, after most elaborate arguments, that the word theft did not necessarily mean only a stealing By violence, but would also include a simple larceny. The goods had been stolen while the vessel was on the yoyage, but it could not be shown by whom, whether by a passenger or by one of the crew. In England, Mr. Arnould says of this case: "In this country it cannot be considered law." 2 Arnould, Ins. 818. In this assertion he is supported by all the early text writers. Mr. Park says: "But that the underwriter is liable for a robbery of the goods insured, when committed by thieves from without, cannot be doubted; as thieves are a peril expressly insured by the policy." Park, Ins. 31, citing Harford v. Maynard, before Lord Mansfield, 1785. In De Rothschild v. Royal Mail Steam Packet Co., 7 Exch. 734, 14 Eng. L. & Eq. 327, eleven boxes of gold dust were delivered to the defendants at Panama to be delivered at the Bank of England. The bill of lading contained the following exceptions: "the act of God, the queen's enemies, pirates, robbers, fire, .accidents from machinery, boilers, and steam, the dangers of the seas, roads and rivers of whatever nature or kind soever excepted." The boxes arrived in safety at Southampton, but in the course of their transmission to London by railway, one of the boxes was stolen without violence. The jury found that the defendants were guilty of negligence in the conveyance of the boxes to London, and that this negligence caused the loss. The defendants pleaded that they were exempted by reason of the exceptions of loss from "robbers," and "dangers of the roads." Judgment was given for the plaintiffs on grounds which would seem to modify to some |