The San Francisco call., 1907-01-16
QUAKE CLAUSE IS
Of NO AVAIL
Federal Judge Rules That
Insurance Company Can
not Plead Failure of Water
NOT CAUSE OF FIRE

Unfted states District Ju6ge Wbtf.ou
held I'm a decision rendered Yesterday
that the failure of the water suuply.
caused by the breaking of the water
mains from any cause whatever, did
mot relieve an Insurance company from
the duty OF paying losses arising from
the fire of April 1S, last year. notwfth-
standing the existence OF an earth
quake clause I'm the policy.
The case was that of Thomas T Ber-
gin against the Commercial Union In
surance Association, Limited of Ion
don, to recover $1,000 on a fire policy
on his building at 211 and 21s Cali
fornia street The company had re-
fused to pay the loss on the ground
that the earthquake clause in the
policy exempted it. Thomas C. Van
Ness. counsel for the company. proceed
ed to question witnesses as to the
breaking of water mains by the tenn
blor, and Garret w. McEnerney object
ed on the ground that the water supply
was not relevant to the facts of the
case; that IL was an absence of pre-
vention, and not cause of the fire.
Judge Whitson, In his decision, said:
The language over which the controversy
Bergin against all direct loss or damage by fire
except caused directly or indirectly by invasion,
earthquake" etc. Counsel contends on behalf
of the defendant that the meaning of the pol
icy is the same as though the words .direct
loss or damage by nre," followed by the word
follows: Against all direct loss or damage by
fire, except direct loss damage by fire caused
directly or indirectly by invasion. earthquake"
etc.
NOT A CAUSE OF FIRE
In other words, the argument is that for the
loss or damage by fire, resulting directly or
indirectly from an earthquake there is no la
bility If It can be shown that the earthquake
10 ha wa . haI
been broken the hremen would have been able
TO extinguish the fire, which, not being extn-
ing which did take fire by reason of the earth
quake, and that fire eventually reached and
If the word fire" should be inserted after
except" the clause would read: Against all
direct loss or damage by fire except fire caused
directly or indirectly by INVASION earthquake"
etc. To my mind that more clearly expresses
what was probably intended by the language
used.
L cannot diYest myself of the view that the
words direct loss or damage by fire. were in
tended TO relate to the direct indirect origin
of the fire, and not to the disarrangement of the
agencies employed to prevent the spread of fires.
Taking a comprehensive view of the insurance
business as usually carried on, we are justified
in recalling the fact that the breaking of
water mains, failure Of water supply and the
like do not constitute defenses against loss by
IRE unless. excepted in terms. This is. l be-
lieye. rule without exception. The probability
OF such occurrence may and often does affect
the rates, but the happening of them does not
relieve from liability under contracts of this
character.
Now, If the loss or damage must result from
a IRE II would be remote consequence to say
that II resulted from an earthquake; since, but
for the earthquake, the FIRE might have been
extinguished. Direct loss damage by fire
might mean destruction OF the property by fire,
directly or indirectly caused by an earthquake.
That is the impression that one gets in reading
oSUsE IS OBSCURE
Ordinarily we do not look for ellipses In in
surance policies. An ellipsis is suggested here
TO be supplied by reading In antecedent words.
Whether ii was made Intentionally and the
clause left in obscurity for ulterior purposes. or
accidentally by inaccuracy Of statement, neither
Of which we have any right TO assume, the
in the whole policy is left sufficiently obscure
to render It in marked contrast with other
and appropriate words
whsteves !. the proper c9ostrgction construction Of the the
intended to rely upon the destruction Of agen-
cies provided for protection against fire or fail
ure of water supply caused by earthquake, it
cannot avail itself, under the well-established
rule, Of that exception.
The construction TO be given Section 262s OF
judgment is that 1t relates TO the happening of
the frs and not to matters which were incl
would have been prevented by the extinguish-
ment Of the fire. Considering the probable his
tory of this section, 1t is fair to assume that it
was only intended to enact into statute law a
rule OF the courts. and by reference to the rule
we find that 1t does not sustain the contention
here, and in transplanting 1T to this State its
construction in New York came with it,
The ruling VIII be that all testimony offered
for the purpose Of establishing that the fire
might have been extinguished if there had been
an available water supply, will be excluded.
The remainder of the session of the
court was occupied with the examina-
tion of electricians and firemen as to
"short-circuiting" and the scarcity of
water caused by the breaking of the
water mains. The trial will be re-
sumed at 10 a. m. today.