reasonable application of this rule; the goods must be removed from immediate danger, and not because of some fear of a possible or remote danger. And if the loss or injury could be attributed to the want of even so much care as could be given under such circumstances, the negligence, and not the fire, would be regarded as the proximate cause, and the insurers would not be liable. (g) Insurers are liable for the loss caused by the blowing up of buildings to arrest the progress of a fire, *when that pre* 448 caution was justified by the circumstances. (r) And this was held, where a house on fire was blown up by gunpowder, and the policy provided that the insurers should not be liable for a loss from the explosion of gunpowder; because this provision was held to exclude only fire originating from an explosion of gunpowder. (s) But in another case, where the policy excluded any loss occasioned by the explosion of a steam-boiler, and by reason of such explosion the building was set on fire, the insurers were held not liable, although the fire was the proximate cause of the loss; because the loss was directly and wholly occasioned by the explosion. (t)

We are not aware that general average claims or provisions. are ever inserted in American fire policies, although they are said to be in English policies; but the principle of general average may have some application in this country. In one case where insurance was effected on a stock of goods in a certain store, and, an adjoining store being on fire, the insured, with the consent of the president of the insurance company, bought some blankets and spread them on the outside of the store where it was exposed to the flames, the building was saved, but the blankets were ruined. The assured claimed to recover the entire expense. The

Me. 200. See also, where the insurers were held for a loss on goods removed from imminent peril, although the store from which they were removed was never reached by the fire. White v. Republic Ins. Co. 57 Me. 91. See also Stanley v. Western Ins. Co. L. R. 3 Ex. 71; Balestracci v. Firemen's Ins. Co. 34 La. An. 844.

(7) See Case v. Hartford Ins. Co. 13 Ill. 676; Babcock v. Montgomery Co. Ins. Co. 6 Barb. 640; Hillier v. Alleghany Co. Ins. Co. 3 Barr, 470; Agnew v. Ins. Co. 7 Am Law Reg. 168, affirmed Independent

1 As to the risks excluded by a proviso against liability for loss by "invasion," "insurrection," military or usurped power," see Boon v. Etna Ins. Co. 40 Conn. 575, reversed in 95 U. S. 117; Harris v. York Mut. Ins. Co. 50 Pa. 341; Portsmouth Ins. Co. v. Reynolds, 32 Gratt. 613.

company contended, that if liable at all, it was only for the proportion which they had at risk upon the policy, taken in connection with the store, of which the plaintiffs had a lease for ten years, and the value of the stock over and above the sum insured upon it; and the court held that they were only liable for this amount. (u)

It is common for policies against fire to provide that the insurers may elect either to pay for damages in money or to repair or rebuild. And it has been held that if insurers under this provision elect to rebuild, this converts the contract of insurance into a building contract; and if then they do not rebuild, the damages for their failure are not limited by the amount insured, but must be the sum required to erect a building of equal value with that insured. (uu)

*

C. — Of a Loss caused by the Negligence of the Insured. There is this difference between marine policies and fire policies. The perils against which marine policies insure are *449 generally, although not always, such as could not be averted by any care or skill which could reasonably be demanded; whereas, the great majority of fires are caused by the negligence of somebody, and very commonly by the negligence of some of the family or servants of the insured. It is to guard against this very risk, that fire policies are made; and it has been held, that insurers are liable for a fire caused not only by persons employed by the insured, but by his own negligence. (v) In

(u) Welles v. Boston Ins. Co. 6 Pick. 182. It was also contended, that the property in the neighborhood ought also to contribute, but the court held, that the contribution must be limited to the building and the property therein immediately saved.

(uu) Morrell v. Irving Ins. Co. 33 N. Y. 429; Beals v. Home Ins. Co. 36 N. Y. 522. See also Wynkoop v. Niagara Fire Ins. Co. 91 N. Y. 478; Fire Association . Rosenthal, 108 Pa. 474.

(c) In Shaw v. Robherds, 6 A. & E. 75, 83, Lord Denman, C. J. said: "One argument more remains to be noticed, viz., that the loss here arose from the plaintiff's own negligent act in allowing the kiln to be used for a purpose to which it was not adapted. There is no doubt that one of the objects of insurance against fire, is to guard against the negligence of servants and others; and,

therefore, the simple fact of negligence has never been held to constitute a defence. But it is argued that there is a distinction between the negligence of servants and strangers, and that of the assured himself. We do not see any ground for such a distinction, and are of opinion that, in the absence of all fraud, the proximate cause of the loss only is to be looked to." This doctrine is now well-settled law in this country. Patapsco Ins. Co. v. Coulter, 3 Pet. 222; Columbia Ins. Co. v. Lawrence, 10 Pet. 517, 518; Waters r. Merchants Ins. Co. 11 id. 213, 225; Perrin v. Protection Ins. Co. 11 Ohio, 147, overruling Lodwicks . Ohio Ins. Co. 5 id. 433; St. Louis Ins. Co. Glasgow, 8 Mo. 713; Mathews v. Howard Ins. Co. 13 Barb. 234, overruling Grim v. Phoenix Ins. Co. 13 Johns. 451; Hynds v. Schenectady Co. Ins. Co. 16 Barb. 119; St. John v. American Ins. Co. 1 Duer, 371;

either case the fire would be regarded as the proximate cause of the loss, and the negligence as the remote cause. It may be said, therefore, that the negligence of the insured, which is but an imperfect ground of defence, even in marine policies, is almost none in fire policies. In a case in Massachusetts, the insurers admitted the loss, and that a fraudulent design to set fire to the building was not imputed to the plaintiff, and offered to show that the building insured was destroyed through the gross negligence and carelessness of the plaintiff, and through his gross misconduct. The court below ruled, that evidence to prove such facts was not material; but the Supreme Court, declaring that they could not say that negligence could not be such as to discharge the insurers, ordered a new trial. But the court, in their decision, so described the negligence which alone would have this effect, that there was no new trial; the insurers paying the loss, with some abatement. (w)

It is quite certain, that policies against fire are contracts only between the insured and the insurer, and do not pass to any other party without the consent of the insurers. (x) If, therefore,

before the loss occurs the insured alienates the whole of his interest in the property, he loses nothing by the fire, and has no claim for any loss. (y) And if he alienates only a part, his claim is in proportion to the interest he retains. (2)

Gates v. Madison Co. Ins. Co. 1 Seld. 469; Copeland v. New England Ins. Co. 2 Met. 432; Butman v. Monmouth Ins. Co. 35 Me. 227; Catlin v. Springfield Ins. Co. 1 Sumner, 434; Henderson v. Western Ins. Co. 10 Rob. La. 164; National Ins. Co. v. Webster, 83 Ill. 470; Germania Ins. Co. v Sherlock, 25 Ohio St. 33; Jameson v. Royal Ins. Co. Ir. R. 7 C. L. 126; Enterprise Ins. Co. v. Parisot, 35 Ohio St. 35; Mickey v Burlington Ins. Co 35 Ia. 174.

(w) Chandler v. Worcester Ins. Co. 3 Cush. 328. In Johnson v Berkshire Ins. Co. 4 Allen, 338, it was found that the fire was caused by the act of the insured; that there had been a want of ordinary

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care, judgment, and discretion on his part, but that he had not been guilty of recklessness and wilful misconduct. Held, that the insured was entitled to recover.

(x) Tate v. Citizens Ins. Co. 13 Gray, 79; Granger v. Howard Ins. Co. 5 Wend. 200; Lane v. Maine Ins. Co. 3 Fairf. 44; Morrison ". Tennessee Ins. Co. 18 Misso. 262; Rollins v. Columbian Ins. Co. 5 Foster, 204. This doctrine was early held in England. Lynch v. Dalzell, 4 Brown, P. Č. 431 (1729); Sadlers Co. v. Badcock, 2 Atk. 554 (1743).

(y) Carroll v. Boston Ins. Co. 8 Mass. 515; Wilson v. Hill, 3 Met. 66. (2) Etna Ins. Co. v. Tyler, 16 Wend. 385, 401. 561

But when a loss occurs, it vests in the insured a right to indemnity. This right is assignable, and an assignee for value may enforce his claim against the insurers, (a) although it may be necessary to bring the action in the name of the insured. But a mere assignment or transfer of the premises after a loss, does not of itself transfer the right of indemnity for the previous loss, unless the contract shows this to have been the intention of the parties.

* 451

Our policies against fire very commonly provide expressly that an assignment either of the property or the policy shall avoid the policy. If this prohibition covers in its terms only a transfer of the interest of the insured, it would seem that this prohibition is not extended by its terms to the contract of insurance. (b) *Some recent policies contain a provision prohibiting a transfer of his claim by the insured after a loss occurs; and then make such a transfer an avoidance of the policy. It has been held, that the policy of the law makes such a restriction upon the power of transferring a vested right itself void. (c) But it has also been held, that if the parties choose to make such a bargain they are bound by it. (d)

An alienation of the property, to have the effect of discharging the insurers, must amount to an absolute conveyance of the title of the insured thereto. (e) 2 Hence, a mortgage of real estate has

(a) Wilson v. Hill, 3 Met. 69; Brichta v. N. Y. Ins. Co. 2 Hall, 372. But see Lynch v. Dalzell, 4 Brown, P. C. 431.

(b) Carpenter v. Providence Ins. Co. 16 Pet. 502; Ferree v. Oxford Ins. Co. 67 Pa. 373. Where a policy issued by a mutual fire insurance company contained this clause: "The interest of the assured in this policy is not assignable without the consent of said company in writing; and in case of any transfer or termination of the interest of the assured, either by sale or otherwise, without such consent, this policy shall thenceforth be void, and of no effect," it was held, that this clause did not merely nullify the assignment of the policy, when made without

consent, but operated on the policy. Smith. Saratoga Co. Ins. Co. 1 Hill, 497, 3 id. 508. As to the meaning and effect of the word "assigns," see an interesting case, Holbrook v. American Ins. Co. I Curtis, C. C. 198.

(c) Goit v. National Ins. Co 25 Barb. 189. See also Courtney v. New York Ins. Co. 28 Barb 116, Alkan . New Hampshire Ins. Co. 53 Wis. 136.

(d) Dey v. Poughkeepsie Ins. Co. 23 Barb. 623.

(e) Masters v. Madison Co. Ins. Co. 11 Barb. 624; Van Deusen v Charter-Oak Ins. Co. 1 Rob. 55; Ayres v. Home Ins. Co. 21 Ia. 185.

1 Such words are construed as meaning voidable by the insurer. Grant v. Eliot, &c. Ins. Co. 75 Me. 196.

2 A conveyance in fee with mortgage back is an alienation, Savage Howard Ins. Co. 52 N. Y. 502; Home Ins. Co. v. Hauslein, 60 Ill 521. See also Farmers' Ins. Co. v. Archer, 36 Ohio St. 608. But the deed must be delivered, Farmers' Ins Co. v. Graybill, 74 Pa. 17; Manhattan Ins Co. v. Stein, 5 Bush. 652. See also Marts v. Cumberland, &c. Ins. Co., 44 N. J. L. 478. But a sale of the equity of redemption is not an alienation, so long as the seller can redeem, Loy v. Insurance Co 24 Minn. 315. A conveyance by a husband and wife to a third person, and by him back to the wife to effectuate the provisions of a will, was held an alienation, in Langdon v. Minn. Ins. Co. 22 Minn. 193. See also Waltno v. Agricultural Ins. Co. 116 N. Y. 317. Where

no such effect, until entry for breach and foreclosure; (f) or a sale of the equity of redemption; (f)2 nor a contract to convey ; (g) nor a conditional sale, where the condition is precedent and not yet performed; (h)3 nor a mere agreement between the owner of property insured and another person, to represent to the creditors of the owner, in order to prevent attachments, that it had been sold to such other person. (i) But it has been held that a policy on an undivided half of a building was avoided by a partition made by the court between the insured and his cotenant. (ii) And that a sale and release of the interest of one partner in the business and property, does not avoid the policy. (ij) A transfer of a part of the property does not avoid the policy as to the part not transferred. (ik) +

(f) Conover v. Mut. Ins. Co. 1 Comst. 290, 3 Denio, 254; Jackson v. Mass. Ins. Co. 23 Pick. 418; Judge v. Conn., &c. Ins. Co. 132 Mass. 521; Byers v. Farmers' Ins. Co. 35 Ohio St. 606. Nor a mortgage of personal property without a transfer of possession to the mortgagee. Rice v. Tower, 1 Gray, 426. See also Holbrook v. Am. Ins. Co. 1 Curtis C. C. 193; Nussbaum v. Northern Ins. Co. 37 Fed. Rep. 524. Nor a levy on execution. Clark v. New Eng. Ins. Co. 6 Cush. 342; Rice v. Tower, Gray, 426. Nor a sale of the equity of redemption, so long as the party has the right to redeem. Strong v. Manufacturers Ins. Co. 10 Pick. 40. But a mortgage is considered a material alteration in the ownership of the property insured. Edmands. Mutual Ins. Co. 1 Allen, 311. And sometimes alienation by mortgage is directly prohibited. Edes v. Hamilton Ins. Co. 3 Allen, 962. See Shepherd v. Union Ins Co. 38 N. H. 232.

(f) Lawrence v. Holyoke Ins. Co. 11 Allen, 387.

(i) Orrell . Hampden Ins. Co. 13 Gray, 431. The policy provided that the insurance should be void "in case of any sale, transfer, or change of title."

() Barnes v. Union Ins. Co. 51 Me. 110. See Plath v. Minn. Farmers' Ins. Co. 23 Minn. 479.

(j) Hoffman v. Etna Ins. Co. 1 Rob. 501; Pierce v. Nashua Ins. Co. 50 N. H. 297; West v. Citizens' Ins. Co. 27 Ohio St. 1; Cowan v. Iowa Ins. Co. 40 Ia. 551; Burnett v. Eufaula Ins. Co. 46 Ala. 11.

(k) Manley v. Ins. Co. 1 Lans. 20; Quarrier v. Insurance Co. 10 W. Va. 507. Contra, Baldwin v. Hartford Fire Ins. Co. 60 N. H. 422, 424.

a husband having right of curtesy insured buildings, and during the term of the policies the wife conveyed to a third person, the husband releasing curtesy, and the grantee then reconveyed to the husband, the whole transaction being merely for the purpose of vesting a complete title in the husband, it was held that a condition making the policy void if "the property shall be sold" was not broken. Kyte v. Commercial, &c. Ins. Co. 144 Mass 43.

1 Foreclosure, however, is complete, although proceedings are pending to correct an error. McKissick . Millowners' Ins Co. 50 Ia. 116. See Commercial Union Ass. Co. v. Scammon, 102 Ill. 46; Bishop v. Clay Ins. Co. 45 Conn. 430; Georgia, &c. Ins. Co. r. Kinnier, 28 Gratt. 88; Phoenix Ins. Co. v. Union, &c. Ins Co. 101 Ind. 392. — K. 2 Contra, by statute, if the owner of the equity takes an unrecorded bond for a reconveyance. Foote v. Hartford Ins. Co. 119 Mass. 259. — K.

8 Nor a deed absolute in form if intended merely as security, so that a court of equity would treat it as a mortgage. Bryan v. Traders' Ins. Co. 145 Mass 389; Barry v Hamburg-Bremen, &c Ins. Co. 110 N. Y. 1; cf. Tomlinson v Monmouth, &c. Ins.

Co 47 Me. 232.

So where the insured exchanges one horse for another. Mills v. Farmers' Ins. Co. 37 Ia 400. — K.