The judgment of the Circuit Court of Ap-Co. 2 Fed. 304; Washburn v. Miami Valley peals is reversed; the judgment of the Cir- Ins. Co. 2 Flipp. 664, 2 Fed. 633; La Force cuit Court is also reversed, and the cause is v. Williams Čity F. Ins. Co. 43 Mo. App. remanded to the latter court, with a direction to enter judgment for plaintiff in accordance with the eighteenth finding, with interest and costs.

Mr. Justice Brewer did not hear the argument and took no nart in the decision.

MILTON C. MITCHELL, Piff. in Err.,
POTOMAC INSURANCE COMPANY OF

Trial

υ.

GEORGETOWN, D. C.

518.

Gasoline was part and parcel of the goods kept for sale by the assured, and was, and was intended to be, protected by the insur

ance.

If any of the printed conditions in a policy of fire insurance are repugnant to the main purpose of insurance against perils by fire, they must yield; otherwise the policy becomes a mere deception, instead of the protection which the parties to it designed.

Hoffman v. Ætna F. Ins. Co. 32 N. Y. 405, 88 Am. Dec. 337; Viele v. Germania Ins. Co. 26 Iowa, 66, 96 Am. Dec. 83; Barnard v. National F. Ins. Co. 27 Mo. App. 26; Fraim v. National F. Ins. Co. 170 Pa. 151, 32 Atl. 613; Faust v. American F. Ins. Co. 91 Wis. - explosion - lighted 158, 30 L. R. A. 783, 64 N. W. 883; Yoch v.

(See S. C. Reporter's ed. 42-53.)

insurance

match.

1. An instruction submitting to the jury a question which is not based on any evidence is properly denied.

2. An explosion caused by gasoline kept in a retail stove and tin store is not covered by a policy insuring the stock of goods by a written clause including the grant of a privilege to keep a limited quantity of gasoline, where the printed clauses of the policy exclude liability for explosions of any kind unless fire ensues, and then cover loss or damage by fire

only.

3. A lighted match is not a fire within the meaning of an insurance policy excluding liability for damages caused by explosions, so as to cover damages from an explosion caused by the match.

Home Mut. Ins. Co. 111 Cal. 503, 34 L. R.
A. 857, 44 Pac. 189.

The insurance company ought not to be heard to say that it insured an explosive only in the event it did not explode,-practically the only thing gasoline or its vapor can do when brought into contact with fire.

Harper v. New York City Ins. Co. 22 N. Y. 441; Lynn Gas & Electric Co. v. Meriden F. Ins. Co. 158 Mass. 570, 20 L. R. A. 297, 33 Ν. Ε. 690.

The instruction of the court below restricting the meaning of the word "explosion" to what the ordinary man would understand to be meant by that word is at variance with the well-settled rule that where a contract of insurance is so drawn as to be ambiguous, or to require interpretation, or to be fairly susceptible of two different constructions, so that reasonably intelligent men on reading Argued October 23, 24, 1901. Decided No- the contract would honestly differ as to the vember 11, 1901.

[No. 51.]

I
aflirming a judgment in favor of the defend-
ant in an action on a policy of insurance.
Affirmed.

N ERROR to the Court of Appeals of the
District of Columbia to review a decision

See same case below, 16 App. D. C. 241.
The facts are stated in the opinion.

Mr. Samuel Maddox argued the cause and filed a brief for plaintiff in error:

Whenever there is a question of fact before the court, and there is any testimony, no matter how slight, tending to prove the existence of such fact, the question is one within the peculiar province of the jury, and it is reversible error in the court to withdraw it from them.

Richmond & D. R. Co. v. Powers, 149 U. S. 43, 37 L. ed. 642, 13 Sup. Ct. Rep. 748.

If the jury found that there was fire, how ever slight, in the back cellar, just before the explosion and causing it, their verdict must have been for the plaintiff.

Hamburg Transatlantic F. Ins. Co. v. Dorsey, 56 Md. 70; Washburn v. Farmers' Ins. NOTE. On the liability of an insurer for loss caused by explosion-see Heuer v. Northwestern National Ins. Co. (Ill.) 19 L. R. A. 594, and

meaning thereof, that construction will be adopted which is most favorable to the assured.

Imperial F. Ins. Co. v. Coos County, 151 U. S. 462, 38 L. ed. 235, 14 Sup. Ct. Rep. 379.

It is also at variance with that other wellestablished rule which holds that conditions providing for disabilities and forfeitures are to receive, when the intent is doubtful, a strict construction against those for whose benefit they are introduced.

Hoffman v. Ætna F. Ins. Co. 32 N. Y. 405, 88 Am. Dec. 337.

Mr. J. Holdsworth Gordon argued the cause and filed a brief for defendant in er

ror:

Where a lighted match is applied to the escaped gases, and an explosion thereby occurs, which causes damage, but is not followed by combustion, the explosion is the proximate cause of the injury, and the lighted match is only the remote cause. In such case, fire does not reach the property injured, but the concussion resulting from the explosion does the damage, and is the proximate cause.

Hamburg Transatlantic F. Ins. Co. v. Dorsey, 56 Md. 70; Heuer v. North-Western National Ins. Co. 144 III. 393, 19 L. R. A. 594, 33 Ν. Ε. 411.

"It being covenanted as conditions of this contract that this company not be liable for loss caused by lightning or explosions of any kind unless fire ensues, and then for the loss or damage 15 feet the back artwor by fire only.

"Or, if gunpowder, phosphorus, naphtha, benzine, or crude earth or coal oils are kept out the use of a light. On reaching the tier on the premises, or if camphene, burning I struck a match and looked in the particular place where we were accustomed to keep fluid, or refined coal or earth oils are kept this kind of casting; but it was not there. for sale, stored, or used on the premises, in quantities exceeding one barrel at any one As I had been away from the store for three time without written consent, this weeks previous, and did not know to what

bin in the shelves they had been *moved, I[46] started looking from one to the other, beginning near the top. The first match

The damage to the insured stock amounted to $4,568.50, and was due to the falling of the building and the crushing of the stock burned my fingers, and I dropped it and lit as hereafter detailed. The defendant denied another, with which I continued my search liability on the ground that the falling of down, when all of a sudden the place was the building and injury to the stock had enveloped or filled with this blue flame. It

destruction by fire, and the plaintiff is not entitled to recover anything from the defendant."

It is not important to inquire whether there was in truth any evidence tending to prove the existence of a fire in the front cellar preceding the lighting of the match therein, because the submission of the question to the jury was all that the plaintiff could ask, and the verdict negatives its existence. But the court drew a distinction between the front and rear cellar, and refused the foregoing request by the plaintiff's counsel, for the reason given, as follows:

was a bluish color, and I knew at once that, but if the explosion were not an incident to it was gasoline vapor that had ignited. I a precedent fire, but was the origin and the knew it at once because I remembered the direct cause of the loss, then there was no appearance of it, had seen it before. Where it started I do not know; but the first I knew of it, it was all over the place and I was in the midst of it. I don't know distinctly whether the blaze started at my hand or not. When I became conscious of the fact that there were flames there, it was all over the place; not only where I was, but all over the cellar. I noticed it first all over the cellar. There was no noise connected with it, except the sh-sh-sh like the swish of a whip or anything of that kind. I could see it play around. I became unconscious, either from the burns or the walls falling on me, I don't know which. The first thing I noticed on recovering conscious ness was the fact that the back cellar was full of fire, and knowing that the gasoline was in that part of the cellar, I used every effort to get as far away from it as possible. I crawled towards the front, where I was pulled through the front wall. I had been protected from the débris by the way in which the joists fell. They broke in the middle, one end remaining in the east wall and the other resting on the floor, thus leaving a little angle at the side. This condition existed all the way to the front of the building. It was very dark,-like the dark-fire, but it is claimed by the plaintiff that ness of Egypt. The brick work was shat- there existed *a precedent fire, and that the [48] tered in front and the house had fallen explosion was an incident of that precedent

down."

The plaintiff in error claimed on the trial that there was evidence of a fire in the back cellar preceding the explosion and causing it, and that the explosion was therefore but an incident in the progress of the fire, and the company was therefore liable on the policy. He made the following request to charge the jury:

"The court was asked to instruct you with reference to the theory that there was a precedent fire in the back room. The court felt obliged to refuse such an instruc tion, because there is no testimony in the case that would justify the jury in reaching the conclusion that before Mr. Oliver struck that match there existed a fire in the rear portion of that cellar. There is no testimony and no evidence of the fact." The court also charged as follows: "It is not contended that any fire followed the explosion, and that any portion of this stock in trade was injured by a subsequent

fire. The court has granted an instruction to the effect that if there existed upon the premises a fire, and that the explosion, if there was an explosion, followed as an incident to that fire, then the loss to the plaintiff would be really occasioned by the fire, for the explosion would be nothing but an incident to fire."

The court also charged:

"Now the question for you to determine in the light of all this testimony and your own knowledge and experience is this: Was the falling of this building and the injury

"If the jury find from the evidence that on the 28th day of September, 1896, at or before the time the witness Oliver went into the cellar of the plaintiff's premises, as described by him, a fire originating in acci- to the stock in trade contained within it

dental or other causes was in progress in the back cellar of said premises, and that after

[47]ward and *while such fire was in progress the gas or vapor generated by the evaporation of liquid gasoline came in contact with the flames of such fire and exploded and prostrated portions of the building in which the insured commodities were stored, then the damage done to such commodities by reason of such prostration was occasioned by fire within the meaning of the policy, and the plaintiff is entitled to recover in this ac

tion."

"The court has granted an instruction to this effect, that if there existed upon the premises a fire, and that the explosion, if there was an explosion, followed as an incident to that fire, then the loss to the plaintiff would be really occasioned by the fire,

ply rapid

com

due to an explosion or not? If it was, and
there was no antecedent fire, the verdict
should be for the defendant. If you find in
the case evidence that there was an anteced-
ent fire, which did not amount to an ex-
plosion, but which was simply
bustion, which resulted in a collapse of the
building, and not in an explosion, then it is
conceded that the plaintiff is entitled to re-
cover such damages as you shall find that
he sustained. If you find a verdict for the
plaintiff, you ought to give him interest on
the amount to which he is entitled from the
19th day of January, 1897. You may take
the case, gentlemen."

With relation to the denial of the request of plaintiff's counsel, the court of appeals, in the opinion delivered by Mr. Justice Shepard, said:

"The instruction undertook to direct the special attention of the jury, first, to the probable existence of an accidental fire in the rear cellar before the entry of the witness Oliver into the front one, and, second,

to the probable ignition of the vapor in the to that effect it cannot be presumed that

front cellar by that fire instead of by the match lighted by Oliver immediately before the explosion took place in the front cellar. Neither of these inferences seems to have any reasonable foundation in the evidence, and the second is directly opposed to the testimony of Oliver, upon which the plaintiff's case rests. Had this been the only issue in the case the court might, without error, have directed a verdict for the defendant. Gunther v. Liverpool & L. & G. Ins. Co. 134 U. S. 110, 116, 33 L. ed. 857, 860, 10 Sup. Ct. Rep. 448." And also Griggs v. Houston, 104 U. S. 553, 26 L. ed. 840.

(49) *A careful perusal of the evidence in the case brings us to the same conclusion. There was no evidence of any fire in the back cellar preceding the lighting of the match in the front cellar, and it would have been error to submit such a question to the jury for that reason. The request was therefore properly denied.

It is also contended that gasoline being kept for sale by the insured in his store, was covered by the written language of the policy, which included not only his stock of stoves, etc., but also "such other goods kept for sale in a first-class retail stove and tin store, situate No. 3,108 M street, Georgetown, D. C." It is then argued that, as gasoline is in its nature explosive, the risk arising therefrom was covered by the policy, and the loss occasioned thereby was one for which the company was liable; and if the printed provisions of the policy provided otherwise they are inconsistent with the written part of the policy, and the latter must prevail. This construction would render unnecessary the privilege to keep not more than five barrels of gasoline, which is also written in the policy. We think the construction contended for is inadmissible.

such is the fact. The language which immediately follows, "privilege granted to keep not more than five barrels of gasoline or other oil or vapor," also tends to show quite conclusively that the parties did not con. sider the description already given of the property insured, as permitting the keeping and selling of gasoline, for otherwise the privilege would not have been necessary to be inserted in the policy.

Taking the written and the printed language of the policy together, and there is no inconsistency therein. The extent and limits of the insurance are, as stated in the printed provision, "against all such immediate loss or damage as may occur by fire to the property specified, not exceeding the sum insured;" and there is the further condition, "it being covenanted as conditions of this contract that this company... shall not be liable for loss caused by lightning or explosions of any kind unless fire ensues, and then for the loss or damage by fire only."

The written part insured the plaintiff on property therein described, which does not cover gasoline in the description of "other goods." What the insurance is and its limits are stated in the printed portions. Taking all the language together, the written and the printed, the contract is plain and unambiguous, without inconsistency or contradiction between the written and printed portions thereof, and therefore there is no room for the application of the principle that where such inconsistency or ambiguity exists the written portion prevails. rasoline for

In regard to the keeping of gasoline sale, and the reason for writing the privilege to so keep it in the policy, and the effect thereof, the court charged as follows:

"You hardly need be told, I think, as ordinary business men, that a privilege to keep something does not bring the privileged article within the articles insured by the policy. Suppose that clause read 'privilege to keep not more than 50 pounds of gunpowder,' on the premises, and the party insured was keeping a dry goods store or a drug store, would it be contended by any sensible man that the gunpowder was an article insured by the policy? Clearly this [51] privilege to keep was inserted to offset the forfeiture of the policy if the provision contained in this policy were violated without this privilege, and that provision is this:

The language of the policy did not insure the plaintiff upon any property which he might choose to keep and sell in his store. The language means, not only the particular property specifically described, but such other goods as are kept for sale in a firstclass retail stove and tin store, which in this case was situated as stated in the policy. Identifying the store by naming its situation does not alter the significance of the language, in effect, prescribing that the goods are such as are kept for sale in a firstclass retail stove and tin store. The "other goods" must be such as are ordinarily, usually, customarily kept for sale in a firstclass retail stove and tin store, and not such other classes of property as the insured may then or at any time choose to keep for sale in his particular store. This we think is the plain meaning of the language. The cases cited in the opinion delivered in the court of appeals make this plain, if any thing more than the language itself were wanted for that purpose. Unless gasoline is such a commodity as is usually kept for sale in a first-class retail stove and tin store, [50]it would not be included in that language. There is no evidence showing that gasoline is thus usually kept, and without evidence had been destroyed by fire. (1) So it must

"If gunpowder, phosphorus, naphtha, benzine, or crude earth or coal oil are kept on the premises, or if camphene, burning fluid, or refined coal or earth oils are kept for sale, stored, or used on the premises in quantities exceeding one barrel at any one time, without written consent of the company, the policy should be void.

"So that if these five barrels of gasoline were kept upon those premises without the written consent of the company, the policy would have been absolutely forfeited and the plaintiff would not have been entitled to recover damages for loss if the whole stock

be believed that the plaintiff, when he took his policy, fully understood what its terms and provisions were. That is the reason that he asked for, received, and paid for this privilege of keeping not more than five bar

The plaintiff claimed there was some evidence that the collapse of the building was the result, not of explosion, but of rapid combustion of the gasoline vapor, which first expanded the atmosphere of the cellar, and

rels of gasoline on the premises. I suppose then, through cooling, produced a vacuum that, inasmuch as keeping such inflammable that caused the crushing in of the floor by material upon the premises would naturally the unresisted pressure of the external atincrease the risk of loss, the insurance com

pany would require the payment of a larger premium than it would have required if such inflammable material were not kept on the premises."

We regard this part of the charge as unexceptionable.

The plaintiff also claims that error was committed by the court in charging the jury,

mosphere.
With reference to that contention the
court charged:

"If the jury believe from the evidence
that on the 28th day of September, 1896,
the commodities of the plaintiff mentioned
in the policy of insurance, offered in evi-
dence, were destroyed *or injured or lost in [53]
the manner testified to by the plaintiff's wit-

at the request of the defendant, in sub-nesses; and if they further find from the evi

stance:

(1) If the loss was caused solely by an explosion or ignition of explosive matter, not caused by a precedent fire, the plaintiff

cannot recover.

(2) If an explosion occurred from contact of escaping vapor with a match lighted and held by an employee of the plaintiff, and the loss resulted solely from such explosion, the verdict must be for the defendant.

(3) A match lighted and held by an employee of the plaintiff coming in contact with the vapor and causing an explosion is not to be considered as "fire" within the meaning of the policy.

[52] *We think each instruction was correct. A loss occurring solely from an explosion not resulting from a preceding fire is covered by the exception in the policy. And an explosion which occurred from contact of escaping vapor with a lighted match, under the facts stated, would also plainly come

dence that such loss or damage was the result of fire not having its origin or commencement by or with an explosion of any sort, but by the accidental combustion of any nonexplosive substance in the cellar of plaintiff's premises, described in said policy, and that in consequence of such combustion the front building erected on said premises was prostrated, and the loss or damage to the property insured was the immediate result thereof, then the loss was occasioned by fire within the meaning of the policy, and the plaintiff is entitled to recover in this action."

We think these two extracts from the charge of the judge fairly presented the question to the jury, and the exception to the charge is not available.

We find no error in the case, and the judg. ment of the Court of Appeals is affirmed.

within the exception of the policy. Also MISSOURI, KANSAS, & TEXAS RAIL

a lighted match is not a "fire" when used as stated in the above third clause of the charge. United Life, F. & M. Ins. Co. v. Foote, 22 Ohio St. 340, 10 Am. Rep. 735; Transatlantic F. Ins. Co. v. Dorsey, 56 Md. 70; Briggs v. North American & Mercantile Ins. Co. 53 N. Y. 446, 449.

Exception was also taken to the charge of the judge explaining the meaning of the word "explosion" as used in the policy. Upon that the court charged:

"Now, gentlemen of the jury, when the word 'explosion' was used in the policy, the company as ordinary men, at least its officers were ordinary men, and not, as I assume, scientific men, and the party insured an ordinary man, are presumed to have understood the word 'explosion' in its ordinary and popular sense. Not what some scientific man would define to be an explosion, but what the ordinary man would understand to be meant by that word. And, after all, the question here being explosion or nonexplosion, is, What do you, as ordinary men, understand occurred at that time in the light of all the testimony? Was it an ex plosion in the ordinary and popular sense of that word, or was it a fire with a subse quent explosion or a subsequent collapse of the building as a sequence to the fire?"

WAY COMPANY, Plff. in Err.,

υ.

H. W. HICKMAN, James Cowgil, and Joseph Flory, Constituting the Board of Railroad and Warehouse Commissioners of the State of Missouri.t

(See S. C. Reporter's ed. 53-62.)

Removal of causes-state as real party.

The state is not the real party plaintiff, so as to preclude a removal of the cause to a Federal court for diverse citizenship, in a suit insti

This case appears in the Official Report under the title of Missouri, K. & T. R. Co. v. Missouri Railroad & Warehouse Comrs.

NOTE. On removal of causes generally see notes to Whelan v. New York, L. E. & W. R. Co. (C. C. N. D. Ohio) 1 L. R. A. 65; Butler v. National Home for Disabled Volunteer Soldiers, 36 L. ed. U. S. 346; and Torrence v. Shedd, 36 L. ed. U. S. 528.

On removal of causes from state to Federal courts, where the Constitution of the United States, or an act of Congress, or a treaty comes in question see note to Little York Gold Washing & Water Co. v. Keyes, 24 L. ed. U. S. 656. See also Ferguson v. Ross (C. C. E. D. Ν. Υ.) 3 L. R. A. 322, and note; Austin v. Gagan (C. С. N. D. Cal.) 5 L. R. A. 476, and note.