Preston v. Union Assur. Soc. — 103 N.Y.S. 640

Majority

p. 640

(118 App. Div. 788)

PRESTON v. UNION ASSUR. SOC.

(Supreme Court, Appellate Division, First Department.

April 5, 1907.)

Headnote

Insubance—Fibs Policy—Cause of Doss—Place of Obigin of Fibe.

Where an accident to an automobile resulted in the leakage oí gasoline from the tank, and fire was communicated to the gasoline, which had escaped, from burning lamps affixed to the outside of the vehicle, the fire loss on the vehicle was not one “originating in the automobile itself,” within a clause of a fire policy exempting the insurer from liability for fire, so originating.

Clarke, J., dissenting.

p. 641

Appeal from Judgment on Report of Referee.

Action by Veryl Preston against the Union Assurance Society. Appeal by plaintiff from a judgment in favor of defendant. Reversed, and new trial ordered.

Argued before PATTERSON, P. J„ and INGRAHAM, LAUGH-EIN, CLARKE, and SCOTT, JJ.

Graham Sumner, for appellant.

Charles D. Cleveland, for respondent.

The same question is presented in this case as in Preston v. Ætna Ins. Co. (decided herewith) 103 N. Y. Supp. 638 . There is a slight difference in the form of the exception, which in this case is as follows :

“It is a condition of this policy that this company is not liable for any loss or damage to an automobile, any of its parts, or its contents, Insured under this policy, caused by fire originating in the automobile itself.” .

It seems to me that the reasonable construction of this clause, as in the ¿Etna Case, is that the exception is to relate to a fire the exciting cause of which .proceeds from the .vehicle itself, and not from the outside. That this was the constr'uction that the insurance company itself gave to this policy is shown by the fact that the assured warranted that the filling of the reservoir of an automobile was to take place by daylight only; for, if the exception covered a fire caused in consequence of the ignition of this gasoline in any other way, except in the interior of the machine, such a warranty would have been quite unnecessary.

"It follows that the judgment appealed from is reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur, except CLARKE, J., who dissents.