# Aetna Fire Insurance Company v. Boon

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## Dissenting Opinion

    Clifford
United States Supreme Court
95 U.S. 117
Aetna Fire Insurance Company v. Boon
ERROR to the Circuit Court of the United States for the District of Connecticut.
This was an action commenced in September, 1868, to recover $6,000, the amount of a policy of insurance, bearing date Sept. 2, 1864, issued to the plaintiffs below by the AEtna Fire Insurance Company of Hartford, Conn., for one year, upon certain goods, wares, and merchandise then in their store at Glasgow, Mo., which were destroyed by fire Oct. 15, 1864.
By written stipulation, a jury was waived, and the issues of fact tried by the court.
On April 28, 1874, the court filed a written opinion declaring their finding of facts upon the evidence, with their conclusions of law thereon, and rendered judgment accordingly for the plaintiffs. No other findings of fact were had, nor was a bill of exceptions tendered at that time. On the 13th of July following, the defendant applied to the circuit judge in vacation for a rule on the plaintiffs to show cause why the findings of fact and the conclusions of law thereon should not be stated by the court, and a bill of exceptions signed and filed nunc pro tunc. Leave for that purpose having been granted, execution of the judgment was stayed. August 22, the parties stipulated in writing that the rule should be heard before the district judge at chambers. Upon the hearing, he, on the twenty-fourth day of that month, granted the rule. At the September Term of the court, the findings of fact and conclusions of law thereon were duly entered nunc pro tunc as of the April Term, and the bill of exceptions was signed by both judges. The findings, so far as they involve any question argued by counsel here, are as follows:--
'That the policy, which was duly executed by the defendant and delivered to the plaintiffs, contained the following express provisions, annexed to the agreement of insurance and in the body of the policy, namely:--
'Provided always, and it is hereby declared, that the company shall not be liable to make good any loss or damage by fire which may happen or take place by means of any invasion, insurrection, riot, or civil commotion, or of any military or usurped power, or any loss by theft at or after a fire.'
That the facts and circumstances showing the cause of the fire are as follows, namely: At and before the time of the fire in question, the city of Glasgow, within which the said store of the plaintiffs was situated, was occupied as a military post of the United States, by the military forces and a portion of the army of the United States engaged in the civil war then, and for more than three years theretofore, prevailing between the government and the citizens of several Southern States who were in rebellion and seeking to establish an independent government, under the name of the Confederate States of America. As such military post, the said city of Glasgow was made the place of deposit of military stores for the use of the army of the United States, which stores were in a building called the city hall of the said city of Glasgow, situated on the same street, on the same side of the street, and about one hundred and fifty feet distant from the plaintiffs' said store, three buildings, nevertheless, being located in the intervening space, not, however, in actual contact with either. Colonel Chester Harding, an officer of the United States government, and in command of the military forces of the United States, held the possession of the said city, and had lawful charge and control of the military stores aforesaid. On the fifteenth day of October, 1864, an armed force of the rebels, under military organization, surrounded and attacked the city at an early hour in the morning, and threw shot and shell into the town, penetrating some buildings, and one thereof penetrating the said store of the plaintiffs, but without setting fire thereto or causing any fire therein, and some of said shell illing soldiers and citizens. The city was defended by Colonel Harding and the military forces under his command, and battle between the loyal troops and the rebel forces continued for many hours. The citizens fled to places of security, and no civil government prevailed in the city. The rebel forces were superior in numbers, and, after a battle of several hours, drove the forces of the government from their position, compelled their surrender, and entered and occupied the city.
During the battle, and when the government troops had been driven from their exterior lines of defence, it became apparent to Colonel Harding that the city could not be successfully defended, and he thereupon, in order to prevent the said military stores from falling into the possession of the said rebel forces, ordered Major Moore, one of the officers under his command, to destroy them.
In obedience to this order to destroy the said stores, and having no other means of doing so, Major Moore set fire to the said city hall, and thereby the said building, with its contents, was consumed. Without other interference, agency, or instrumentality, the fire spread along the line of the street aforesaid to the building next adjacent to the city hall, and from building to building through two other intermediate buildings to the store of the plaintiffs, and destroyed the same, together with its contents, including the goods insured by the defendant's policy aforesaid. During this time, and until after the fire had consumed such goods, the battle continued, and no surrender had taken place, nor had the forces of the rebels, nor any part thereof, obtained the possession of or entered the city.
It was conceded that the order of Colonel Harding was, in the exigency, a lawful and discreet use of the military authority vested in him.
The court declared, as conclusions of law upon the facts found, that the defendant was not exempted by virtue of the said proviso from liability to the plaintiffs under said policy, and that the plaintiffs were entitled to judgment for $6,000, the value of the property destroyed, with interest thereon from July 1, 1865, and costs of suit.
On the 7th of October, 1874, the defendant sued out this writ of error.
Mr. Francis Fellowes for the defendants in error, in support of the judgment below.
The record presents no question which can be reviewed here, as the court below had no jurisdiction of the cause after the close of the term at which the judgment was rendered. Sheppard v. Wilson, 6 How. 275; Turner v. Yeates, 16 id. 14; Walton v. United States, 9 Wheat. 657; Muller v. Ehlers, 91 U.S. 249; Phillip's Practice, 122, 123, 127; 3 Bl. Com. 275, 316; Petersdorff's Abridgment, tit. Amend. 504; Albers v. Whitney, 1 Story, 310; Brush v. Robins, 3 McLean, 487; Carman v. Roberts, 3 Wheat. 591; Bank of The United States v. Massachusetts, 6 How. 31.
But, if the findings can be considered a part of the record, it is submitted the loss in question must be attibuted to its proximate cause, Gen. Mutual Insurance Co. v. Sherwood, 14 How. 352; Insurance Company v. Tweed, 7 Wall. 44; Welts v. Conn. Mutual Life Insurance Co., 48 N. Y. 34; and that is the cause next preceding the effect, and capable of producing it. In this case, this cause was clearly the act of Colonel Harding in setting fire to the city hall; and no other cause 'intervened between this act and the fact accomplished.' Invaders, persons in insurrection, riot, or civil commotion, did not set the fire, nor have any part in the destruction of the insured property. The destruction was adverse to their interest. They took the town, but destroyed nothing.
The so-called military necessity is not named in the contract as a cause of exception. Besides, it had, in itself, no causal power. Furnishing a motive for, and in this sense an antecedent to, the act of Colonel Harding, it had nothing to do with causation.
His act as not that of a military or usurped power. Power, in itself, means simply power, not lawful authority. Military power is not lawful military authority, but rests upon mere force of arms, and must, therefore, of necessity be usurped. The word 'or' in the proviso of the policy is used as conjunctive, not as disjunctive. It means both military and usurped. It is used to express equivalents. Thus, the exceptions signify that any loss happening by means of any military power, or, which is the same thing, of any usurped power, shall be excepted. Or is often so used. Thus we say a thing is a square, or a figure under four equal sides and angles. And the policy says, loss or damage, goods or merchandise, happen or take place, military or usurped.
This construction is sustained by the implied antithesis.
Military has its antithesis in civil; military power, in civil power.
The words 'military or usurped power' were first introduced into policies of insurance in Great Britain soon after the Rebellion of 1715. They referred to the power of the Pretender, and not to any lawful military authority or power of the realm. Ellis, Ins. 41; Park, Ins. 657; Marsh. Ins. 791. Prior to that time, the exceptions were 'fire occasioned by invasion and foreign enemy.' The framers of them seem to have considered either invasion or foreign enemy as a military power, and then, lest they might not be comprehensive enough to embrace domestic rebels, like the Pretenders and their followers, 'any military or usurped power whatsoever' was added. Manifestly, 'military' and 'usurped' were synonymous. 1 Bell, Com. 672. The courts of Great Britain and of this country treat them as signifying rebellion conducted by authority. Drinkwater v. The London Assurance Co., 2 Wilson, 363; Langdale v. Mason, 2 Marsh. Ins. 791; City Fire Insurance Co. v. Corlies, 21 Wend. (N. Y.) 367; Sprull v. North Carolina Mut. Life Insurance Co., 1 Jones (N. C.), 126; Harris v. York Insurance Co., 50 Penn. 341. And the parties to the contract are bound by the settled judicial construction of the words. City Fire Insurance Co. v. Corlies, supra.
The maxim noscitur a sociis furnishes, in this case, the true rule of interpretation. Every other cause of exception named in the proviso, 'invasion, insurrection, riot, civil commotion,' being unlawful, the words 'military power,' in the same category, signify an unlawful military power, not the lawful military authority of the country. This observation derives especial force from the fact that 'military' stands here in such close fellowship with 'usurped.' Military or usurped is the expression. Breasted v. The Farmers' Loan & Trust Co., 8 N. Y. 304; Harper's Adm'rs v. Phoenix Insurance Co., 19 Mo. 506; Cluff v. Mut. Benefit Life Insurance Co., 13 Allen (Mass.), 308.
The act of Colonel Harding, so far from being the act of a military or usurped power, was an act of civil jurisdiction, whereby he asserted, in behalf of the nation, their paramount title to the property, by virtue of the right of eminent domain. Mitchell v. Harmony, 13 How. 113; Grant v. United States, 1 Ct. Cl. p. 41; Wiggin's Case, 3 id. p. 412; Harris v. York Insurance Co., 50 Penn. 341.
This, however, does not exempt the insurers from liability. But, on paying the loss, they are substituted to the rights of the insured.
If the destruction of the goods was not the intended consequence of the act of Colonel Harding, and, therefore, not a taking of private property for public use, but was accidental, it was one of those accidents the peril of which the insurers assumed. It was not thereby converted into the act of rebels, nor did it, therefore, happen by means of invasion, insurrection, riot, civil commotion, or of any military or usurped power.
The underwriters made their own exceptions, and the onus of proving the loss to be within the exceptions is on them. If, therefore, t ere is any ambiguity in the words employed, or any doubt as to the loss being within the exceptions, the principle of fortius contra proferentem furnishes the rule.
The obvious natural import of the words employed designates plainly the unlawful character of the causes excepted; the history of their first introduction into policies of insurance shows the nature of the risks intended to be excluded; and the subsequent adjudications of the meaning of the words render it certain that the words 'military or usurped power' have no reference to acts of constitutional sovereignty, but are limited to acts of rebellion. The act of Colonel Harding, which caused the loss, was not an act of rebellion. The loss was not, therefore, excepted by the proviso.
Mr. G. W. Parsons and Mr. R. D. Hubbard, contra.
MR. JUSTICE STRONG delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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