Farley v. Life Ins. Co.

no probability of their ever living together in harmony as husband and wife. If the bond of marriage is not legally broken, judging by the past, there will be endless bickerings; probably questions of proper contribution by the husband to the support of the wife, resulting in appeals to the criminal courts. The husband is shown to be a man of good habits and small means, undoubtedly irascible, but of good character. Finding him the "injured and innocent pàrty," as that is defined by the law, we think him entitled to a decree of divorce.

Our conclusion upon reading all of the testimony in the case is that the learned trial judge was in error in refusing a decree to plaintiff and in dismissing his suit.

It follows that the judgment of the circuit court cannot stand. That judgment is reversed and the cause remanded with directions to the circuit court to enter up a decree in favor of the plaintiff as of the date of the rendition of the decree in this case. The costs in this court, as well as in the circuit court, should be and are adjudged against the plaintiff.

Becker, J., concurs. Allen, J., dissents, not thinking plaintiff has shown himself to be the injured and innocent party.

HATTIE H. FARLEY, Appellant. v. AETNA LIFE INSURANCE COMPANY, Respondent.

St. Louis Court of Appeals. Opinion Filed December 3, 1918.

INSURANCE: Accident Insurance: Death: Double Indemnity: Burning of Building. In an action on a policy of accident insurance by the beneficiency where the provisions of the policy obligated the insurer to pay the beneficiary double indemnity in the event the injuries causing the loss were sustained by the insured "by reason and in consequence of the burning of a building while the insured is therein," and the evidence shows that the insured, an electrician, was fatally burned, as a result of a single flash shown to have been emitted by the electric current at a switch board installed

Farley v. Life Ins. Co.

inside of the building, caused by a short circuit, which communicated the fire to insured's clothing, proximately causing his injuries, held, that the insured did not sustain his fatal injuries in consequence of the burning of a building, and, hence the beneficiary could not recover double indemnity.

Appeal from the Circuit Court of the City of St. Louis. -Hon. Wilson A. Taylor, Judge.

AFFIRMED.

lant.

James J. O'Donohoe and Paul U. Farley for appel

(1) The switchboard was part of the building. Climer v. Wallace, 28 Mo. 556; Rogers, et al. v. Crow et al., 40 Mo. 91; Thomas v. Davis, 76 Mo. 72; Cohen v. Kyler, 27 Mo. 122; Havens v. Ins. Co., 123 Mo. 403; Goodin v. Elleardsville Hall Ass'n, 5 Mo. App. 289; Donnewald v. Turner Real Estate Co., 44 Mo. App. 350; The State Savings Bank v. Kercheval, 65 Mo. 682; Cooke v. McNeil, 49 Mo. App. 81; Davis v. Mugan, 56 Mo. App. 311; West v. Ins. Co.. 117 Iowa, 147; Hopewell Mills v. Taunton Savings Bank, 150 Mass. 519; Clark v. Hill, 117 N. C. 11; Ins. Co. v. Caldwell Bros., 95 Ala. 77; Alvord Carriage Mfg. Co. v. Gleason, 36 Conn. 86; Thielman et al. v. Carr et al., 75 Ill. 385; Curran v. Smith, 37 Ill. App. 69; Canal Co. v. Rockingham, 37 Vt. 622; Roddy v. Brick, 42 N. J. Eq. 218; State Security Bank v. Hoskins, 130 Iowa, 339; Brigham v. Overstreet, 128 Ga. 447; Lavenson v. Standard Soap Co., 80 Cal. 245; Porter v. Cromwell, 40 N. Y. 287; Gunderson v. Swarthout. 104 Wis. 186; 1 Clement on Insurance pages, 78-81, cases cited; Ostrander on Insurance, page 435, cases cited; Ewell on Fixtures, pages 91-93, cases cited; Gray v. Holdship, 17 Am. Dec. 680, and note; Walker v. Sherman, 20 Wend. (N. Y.) 636; Farror v. Stackpole, 6 Me. 154. (2) The injuries which caused the death of the insured were sustained by reason and in consequence of the burning of a building while the insured was therein, within the meaning of the policy. Wilkinson v. Aetna Life, 240 Ill. 205; Curran

Farley v. Life Ins. Co.

v. Natl. Life, 251 Pa. 420, 1. c. 428-30; Hamilton v. Accident Ins. Co., 99 Neb. 579; Kleis v. Ins. Co.. 118 Minn. 422; (3) The same principles apply in actions on fire insurance policies. And whether the fire causing damage be instantaneous or slow is immaterial. Renshaw v. Ins. Co., 103 Mo. 595; Farrell v. Ins. Co., 66 Mo. App. 153; Protection Ass'n v. Conner, 115 N. E. .(Ind. App.) 804. (4) Loss caused by a "short circuit" is covered by a policy of insurance. Lynn Gas & Electric Co., v. Ins. Co., 158 Mass. 570; Telephone Co. v. Ins. Co. 123 Wis. 535. (5) It is not necessary to show actual ignition, or combustion to establish a loss by fire. Singleton et al. v. Ins. Co., 132 N. Y. 298; Ermentrout v. Ins. Co., 63 Minn. 305; Way v. Ins. Co., 166 Mass. 67; Insurance Office v. Woolen-Mill Co., 72 Kans. 41; Boak Fish Co. v. Assurance Co., 84 Minn. 419.

Jones. Hocker, Sullivan & Angert, Vincent L. Boisaubin and James C. Jones, Jr., for respondent.

(1) Electricity is not fire; at least there was no proof to that effect in this case, and, therefore, the short circuit, or arc, caused either by the defect or breaking of the wires in the switch box, or in the manner in which the test was made, did not constitute the burning of the building within the meaning of the policy in suit, nor was the death of the insured, as the result of the burns caused by the ignition of his clothes from the electric flame or flash, a death which was the result of an injury or injuries sustained by reason and in consequence of the burning of the building. Sleet v. Farmers Mut. Fire Ins. Co.. 113 S. W. 515; Kenniston v. Insurance Co., 14 N. H. 431; Babcock v. Insurance Co., 4 N. Y. 326; Babcock v. Insurance Co., 6 Barb. 637; Western Woolen Mill Co. v. Insurance Co., 139 Fed. 637, 639; 9 R. C. L., p. 1186. (2) Conceding that electricity is fire (which it is not), the escaping electricity caused by the arc, or short circuit of the wires. of the switch box, did not constitute the burning of a building within the meaning of the policy in suit. Maryland Casualty Co. v. Edgar, 203 Fed. 656; L'Ecuyer

Farley v. Life Ins. Co.

v. Insurance Co., 97 Kan. 540, 155 Pac. 1088; Houlihan v. Insurance Co., 196 N. Y. 337, 89 N. E. 927.

ALLEN, J.-This is an action on a policy of accident insurance. issued by defendant insurance company on June 5, 1917, whereby defendant became bound, inter alia, to pay to the plaintiff, Hattie H. Farley, the sum of $3750, in the event of the death of the insured, Ernest C. Farley, husband of plaintiff, "by reason of bodily injuries effected solely through external, violent and accidental means." By further provisions of the policy defendant obligated itself to pay to plaintiff, as beneficiary, "double indemnity," i. e., $7500, in the event that the injuries causing the loss were sustained by the insured "while a passenger in or on a public conveyance or by reason and in consequence of the burning of a building while the insured is therein.' "" On May 14, 1917, the insured, while working in a room containing a large electrical switchboard, received burns about his person from which he died five days later.

The suit proceeds upon the theory that plaintiff is entitled to recover the double indemnity in the policy, to-wit, $7500. On the trial below before the court and a jury, the court of its own motion, peremptorily instructed the jury that "under the law, the pleadings and the evidence," the verdict should be for the plaintiff in the sum of $3750. In obedience to this instruction the jury returned a verdict accordingly, and from a judgment entered thereon the plaintiff prosecutes this appeal.

One Dell, an electrician and fellow workman with the insured, was the only eyewitness to the casualty, which occurred during the night. According to the testimony of this witness, shortly prior to the accident he and Farley were at a certain bench in the room, referred to as a "substation." Farley, having in his hand a testing apparatus or "testing set," said to the witness that he was "going back to make a test,” or "test out," and walked to the switchboard. Shortly thereafter the witness, who was not looking directly at

Farley v. Life Ins. Co.

Farley at the time but had a "side view" of what occurred, "heard an awful noise," and "saw a flame and gas go up into the air." He said that the flash or flame came from the switchboard. The witness testified that immediately after this flash he glanced in the direction in which Farley had gone, but could not see the latter at first because of the smoke and gas in the room; that he quickly ran to Farley, who was about thirty feet distant, and found the latter's clothing in flames. Witness made efforts to extinguish the flames, but did not succeed in doing so until Farley had been seriously burned. There is some evidence tending to show that the flash caused oil from an "oil box," or tank of oil, connected with the switchboard, to be thrown over Farley's clothing.

The evidence shows that this switchboard, located along one wall of the room, was about thirty feet long and perhaps seven feet in height. It was firmly attached to the floor of the building by being "set in concrete," and was likewise firmly fastened to the wall. The evidence further shows that the body of the switchboard, or "box," as it is termed, was of iron. and that it was equipped with certain electrical appliances, including certain "five-eights copper rods," referred to as "buzz risers," transformers, circuit breakers (immersed in an oil tank), porcelain insulaters, etc. The evidence is that all the material composing the switchboard and the mechanism thereof, above the oil tank, consisted of metal of some character, or of porcelain or slate.

The testimony of Dell and that of one Blakeman, an electrician who worked at the plant at which Farley was injured, shows that the flash which set fire to Farley's clothing resulted from a short circuit, or electrical arc, caused in some manner while Farley was making the test mentioned, and that such a short circuit will cause a flash or flame and intense heat. On cross-examination Dell testified that he saw no flame, "excepting this first flash," i. e., other than the flames upon Farley's clothing; and that when he