Black v. Thorne.

of such furnaces, as compared with the plaintiffs' furnace and process; but the inquiry before the master involved the details of such economical working, with a view to arriving at the saving in money effected by the use of the plaintiffs' patented improvements.

It is no answer to these views to say, that the Court has held, in this case, that the patentee was the first to discover, and put in practice, the true method of economically burning wet fuels, and obtaining from them better results than from equal quantities of dry fuels. That is true, but still the difference in economy which the defendants have derived from using the patented improvements is now the subject of inquiry. It may be that equally beneficial results in the way of heat could not have been obtained by the use of any number of furnaces burning any quantity of fuel, wet or dry, or both. It may be, that, to produce equally beneficial results in the way of heat, would have required a certain number of furnaces, involving a certain expense for construction and working, and a certain quantity of a given kind of fuel, costing a certain sum. It may be, that the result of all these inquiries will be to show that, after all, the defendants have saved the expense of all the wood it would have taken to produce heat enough for use in tanning the same number of hides which they have tanned by the use of the heat produced by the infringing furnaces; and that, with that saving, they have still had a surplus of unused heat. If so, the proper inquiry will have been made, and the result arrived at will have been reached on a presentation of all the evidence properly bearing on it.

As these views require the report to be set aside, and the case to be sent back for the taking of further evidence, in conformity with this opinion, an order will be entered to that effect.

Dorman B. Eaton and Andrew J. Todd, for the defendants.

Charles N. Black, for the plaintiffs.

Boon v. The Etna Insurance Company.

WILLIAM C. BOON AND OTHERS

vs.

THE ETNA INSURANCE COMPANY.

A policy of insurance, on goods in a store, against loss by fire, contained this proviso, in its body: “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." The city, in which the store was, was occupied by the United States army, and its City Hall contained military stores for the use of such army. The military forces of rebels against the United States Government attacked the city and the United States forces. The commander of the latter, in order to prevent such military stores from falling into the possession of the rebels, who were gaining successes in the attack, and ultimately occupied the city, ordered the destruction of such stores. This was done by setting fire to the City Hall, and consuming it and its contents. The fire spread through three adjacent buildings to the store containing the insured goods, and they were consumed. After this, the rebels occupied the city: Held, that the proviso did not exempt the insurer from liability for the loss. The loss did not happen by means of the unlawful and rebellious attack on the city, within the meaning of the proviso.

Between the attack and the fire a new power intervened, as a sufficient cause of the fire, rendering the attack, as a cause of the fire, too remote.

Whether, even the setting fire to the City Hall was not a cause too remote to be the means by which the loss happened, within the meaning of the proviso, quere.

The words " military power," in the proviso, have no reference to the lawful acts of the military forces of the United States, and the proviso does not exempt the insurer from liability for loss caused by the acts of such military forces.

Words of exception in the proviso should be taken most strongly against the insurer.

(Before WOODRUFF and SHIPMAN, JJ., Connecticut, April 28th, 1874.)

WOODRUFF, J. The facts in this case are not doubtful nor in dispute. The action is brought to recover from the defendant the amount of an insurance, against loss by fire, upon the goods of the plaintiffs, in their store in Glasgow, Mis

Boon v. The Ætna Insurance Company.

souri, in the sum of $6,000. It is founded on a policy executed by the defendant, dated September 2d, 1864, and the goods were destroyed by fire on the 15th of October, 1864, within the term of the insurance. The loss was sufficiently great to entitle the plaintiffs to recover, if the defendant is liable at all, the whole sum insured. The plaintiffs have complied with all the terms and conditions of the policy, by the payment of premium, furnishing proper preliminary proofs of loss, and compliance with all other requirements. The policy, however, contained the following express proviso, 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." The defence herein rests solely on this proviso, and the facts which are claimed to bring the plaintiffs' loss within its operation, so as to exempt the defendant from liability under the policy.

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, by the military forces, and portion of the army, of the United States, engaged in the civil war then, and for more than three years thereto. fore, 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' store, three buildings being located in the intervening space, not, however, in actual contact with either. Colonel Chester Harding, an officer of the United States

Boon v. The Ætna Insurance Company.

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 said 15th 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 killing soldiers and citizens. The city was defended by Colonel Harding and the military forces under his command, and battles 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 said 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 rebels, ordered Major Moore, one of the officers under his command, to destroy them. In obedience to that order to destroy the said stores, and having no other means of doing so, Major Moore set fire to the 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.

Upon these facts, and in view of the before mentioned proviso in the policy of insurance, the question arises: Is the de

Boon . The Etna Insurance Company.

fendant liable for the loss of the plaintiffs' goods, or does that proviso exempt the defendant from liability? That question depends upon the answer to be given to some other questions. That is to say:

1. It is insisted, that, within the just and proper meaning of the proviso, the fire in question happened by means of the unlawful and rebellious attack upon the city, by forces acting in assumption of usurped power, endeavoring to capture the forces of the United States, obtain possession of territory in the lawful possession and power of the United States, in aid of the usurped rebel Government, and forcibly accomplish its objects and designs; that the fire, and, therefore, the destruction of the goods, were a military necessity, created by such attack by an illegal armed force, and so they happened by means of the rebellion, and the employment of organized forces to effect the objects thereof, and the actual attempt of such forces to overcome the authority and Government of the United States; that this was, therefore, the direct or proximate cause of the loss, or, in the words of the proviso in the policy, "the means" by which the fire destroying the goods "happened." We think that this reasoning cannot prevail. Fire destroyed the goods. The fire was not communicated to the goods, nor to the building from which it spread, by the rebel forces, nor by any person acting in co-operation with them; nor was it so communicated, in any wise, in furtherance of the rebellion, its purposes or objects. No act of the rebels, in any physical sense, caused the fire. There is nothing to justify the inference, that the rebels would have destroyed the Government stores, found in the City Hall, by fire, or otherwise, nor to justify the inference that the destruction of the goods, or any loss thereof, would have happened to the plaintiffs, by the capture and the occupation of the city by the rebels. As matter of fact, there was no connection, direct or by necessary inference, between such destruction of the goods and the attack of the rebels, the capture of the United States forces, and the occupation of the city.

But, it is said, that such attack by a superior armed force