COLEMAN, Justice. Defendant appeals from judgment for plaintiff entered on a jury verdict in action at law on policy of fire insurance. The policy insures plaintiff "* * * against all Direct Loss By Fire * * * Except As Hereinafter Provided, to the property described hereinafter * * *," and further provides:
The property insured was a wooden, four room, one-story frame house, one room being made of logs, located two miles west of Pell City. Earl C. Snarr who was employed by the United States, the sheriff of St. Clair County, and others discovered a still in the house. It is not shown that plaintiff had any knowledge of or connection with the still. He testified that prior to the fire he had leased the property to one C. M. Hanna. Snarr was "in charge of that raid." Forty sticks of dynamite were placed in the still and exploded. The explosion destroyed the still and blew off part of the top and sides of the house, but "very little of it" was destroyed by the explosion. Fire followed the explosion and the house burned. Both parties appear to concede that explosion of the dynamite caused the fire.
The still was a whiskey still with "boiler type cooker" and ten or eleven "vats" which were "around ten feet long and about four or five feet wide, and four feet high." Capacity was "close to two thousand gallons a week."
By agreement of both parties, the following was admitted in evidence:
"`Earl C. Snarr if present in Court would testify as follows:
The defense relied on in this court is that the fire was caused by order of civil authority, and, therefore, under policy provision (h) quoted above, defendant is not liable. The assignments of error argued are that the court erred: (1) in refusing the affirmative charge with hypothesis requested in writing by defendant, (2) in overruling defendant's
Defendant argues that the proximate cause of the loss was the act of Snarr in destroying the still and that his act was authorized by the following federal statute:
The record does not disclose any judgment of forfeiture. The only order of any civil authority in this case was an order:
In 1924, in ruling on a motion to suppress evidence of federal agents who had destroyed a quantity of intoxicating liquor, the Judge of a United States District Court
The district court decided that "the act of the agent in destroying the liquor was entirely without any warrant of law and constituted a trespass," and that "the evidence sought to be suppressed was obtained by federal agents through an illegal search and seizure and is therefore inadmissible." The provision in the statute in 1924 limiting destruction on seizure where removal is impracticable to stills producing less than 150 gallons per day and worth less than $500 has now been removed.
The statute gave no authority to Snarr to destroy the house. Assuming that it was impracticable to remove the distilling apparatus to a place of safe storage and that the agent was authorized to destroy it, can we hold as a matter of law in this case that he acted to destroy the still "only so far as to prevent the use thereof," when he exploded forty sticks of dynamite in the still? We are of opinion that we cannot so hold.
Appellant argues that "* * * The proof of the case is that while in the course of his duty he seized and destroyed the still so as to prevent the use thereof. This evidence is uncontradicted. There is a presumption that a public official properly and regularly discharges his duties * * * in accordance with the law and the authority conferred on him and that he will not do any act contrary to his official duty or omit anything which such duty may require. (Citations omitted) The presumption prevails until it is overcome by clear and convincing evidence to the contrary. 31 C.J.S. Evidence Section 146b. We speak of this presumption only because the appellee no doubt will be heard to say that Agent Snarr acted illegally. We do not think that even if there was proof that he acted illegally or negligently that such proof would remove the policy qualification from consideration. He was a duly constituted civil authority and he acted, and it was his order that caused the loss. But there is no proof, we reiterate, no clear and convincing evidence to overcome the presumption that he was discharging his duty or performing acts required by law."
The clause excepting from coverage a loss "caused, directly or indirectly, by order of any civil authority," has not, so far as we are advised, been heretofore considered in this jurisdiction, although it has been considered in a few cases elsewhere.
In Hawaii Land Co. v. Lion Fire Ins. Co., 13 Haw. 164, when bubonic plague struck Honolulu, the board of health ordered the burning of buildings in a designated area. The chief engineer of the fire department, being directed to execute the order, started the fire which "accidentally spread" to the
In Conner v. Manchester Assurance Co., 9 Cir., 130 F. 743, 70 L.R.A. 106, under an order of the county supervisors, a fire was started to destroy a plague of grasshoppers for the purpose of saving orchards and vineyards. The fire was set three or four miles from the insured grain field but "got beyond control and reached the lands" of the insured. On appeal, the court said that the statutes conferred authority on the supervisors to provide for destruction of injurious insects and "whether or not there was lawful authority to start the fire * * there was de facto authority. The order was in fact made * * * by the officers to whom the said powers were given, and thereby the loss occurred." Judgment for the insurer was affirmed.
In Hocking v. British America Assur. Co., 62 Wn. 73, 113 P. 259, 36 L.R.A., N.S., 1155, where insured house was destroyed by fire which resulted from fumigation ordered by board of health, the court held that the proximate cause of the fire was the order of the board and not the negligence of its agents in executing the order. Judgment for the insurer was affirmed.
In Port Washington Nat. Bank & Trust Co. v. Hartford Fire Ins. Co., 253 App.Div. 760, 300 N.Y.S. 874, 875, federal agents used acetylene torches to destroy still pursuant to what is now § 5623, Title 26 U.S. C.A. The building housing the still "was inadvertently set on fire." The appellate court reversed judgment for plaintiff, dismissed the complaint, and said:
In Kwong Lee Yuen & Co. v. Alliance Assurance Co., 16 Haw. 674, the suit arose out of the same fire as in Hawaii Land Co., supra, with the difference, however, that here it appears that the fire was started in buildings outside the condemned area and not ordered to be burned. Both opinions are by the same writer. In the later case, the court reversed judgment for insurer for error in giving to the jury a charge requested by defendant as follows:
In Reed v. Newark Fire Ins. Co., 74 N.J.L. 400, 65 A. 1053, 1055, a mortgagee sued on fire policy. Insurer pleaded that the loss was caused by order of a civil authority, to wit, an order of the building inspector of the city directing the destruction and tearing down of the building and not by fire. The court held the plea demurrable because it did not show "that the building inspector had authority to direct the destruction of these buildings, or in what manner such authority was conferred upon him."
In American Central Ins. Co. v. Stearns Lumber Co., 145 Ky. 255, 140 S.W. 148, 149, 36 L.R.A.,N.S., 566, insurer defended on policy provision that insurer "shall not be liable for loss caused directly or indirectly * * * by order of any civil authority." The insured building had been set fire by a United States deputy marshal to drive out of the house three men for whose arrest the deputy marshal had a warrant. On appeal, judgment for insured was affirmed. The court held that "the unlawful act of the marshal in setting fire to the house was the cause of the loss," and the insurer was liable.
In Rhode Island Ins. Co. of Providence, R. I. v. Fallis, 203 Ky. 112, 261 S.W. 892, 894, 37 A.L.R. 432, where sheriff fired gun into insured house to drive out man sheriff sought to arrest and thereby ignited fire which destroyed house, the insurer abandoned the defense that loss was caused by order of civil authority. The court held
In Queen Ins. Co. of America v. Perkinson, 129 Va. 216, 105 S.E. 580, 581, where insured building was fired by order of mayor to drive out fugitive, the trial court instructed jury that the order of the mayor was an "order of any civil authority," but the appellate court left undecided "The very interesting question of whether the order of the mayor was the `order of any civil authority.'"
The rules from the cited cases appear to be that the order is the cause of the loss and insurer is not liable when the loss is the unintended result of an act, done as directed, in execution of a lawful order made in good faith and within the apparent scope of the powers of the civil authority issuing the order, and in such case insured cannot question the necessity for such order under the circumstances of the particular case, Hawaii Land Co. v. Lion Fire Ins. Co., supra; Conner v. Manchester Assurance Co., supra; or, when the loss is the unintended result of the inadvertent or negligent doing of an act actually or apparently, reasonably necessary to execute a lawful order, Hocking v. British America Assur. Co., supra; Port Washington Nat. Bank & Trust Co. v. Hartford Fire Ins. Co., supra; Kwong Lee Yuen & Co. v. Alliance Assurance Co., supra. On the other hand, the order is not the cause of the loss and insurer is liable: when the act causing the loss is done by mistake and is not an act ordered to be done, Kwong Lee Yuen & Co. v. Alliance Assurance Co., supra; or when the act is not actually or apparently, reasonably necessary to execute the order, Kwong Lee Yuen & Co. v. Alliance Assurance Co., supra; or when the act is not one the civil authority is authorized by law to do or order to be done, Reed v. Newark Fire Ins. Co., supra; American Central Ins. Co. v. Stearns Lumber Co., supra; Rhode Island Ins. Co. of Providence, R. I. v. Fallis, supra; or when the act is done, not in execution of the order received, but to gratify the ill will of the actor. Kwong Lee Yuen & Co. v. Alliance Assurance Co., supra.
In the instant case there was no order of any sort requiring that the house be burned. There was no order expressly requiring the use of dynamite. The only order was to destroy the still "only so far as to prevent the use thereof, or any part thereof, for the purpose of distilling." If Snarr's act was either actually or apparently reasonably necessary to execute the order, then the order caused the fire, the loss was excepted from the coverage of the policy, and the insurer was not liable. If, however, Snarr's act was not actually or apparently reasonably necessary to execute the order, then the order was not the cause of the fire, the loss was not excepted from coverage, and the insurer was liable.
In deciding whether the affirmative charge with hypothesis in favor of defendant should have been given, the evidence must be considered in the light most favorable to plaintiff, and such reasonable inferences as could be drawn by the jury must be allowed. Vulcan Life & Accident Ins. Co. v. Standifer, 266 Ala. 246, 97 So.2d 568. The question here is: Does the evidence show without conflict that Snarr's act in exploding the dynamite was actually or apparently reasonably necessary to execute the order? If the evidence does show without conflict that his act was so necessary, then appellant was entitled to the requested affirmative charge. If, on the other hand, the evidence affords a reasonable inference that his act was neither actually nor apparently reasonably necessary to execute the order, then such charge was correctly refused.
See also: Norwalk Gaslight Co. v. Borough of Norwalk, 63 Conn. 495, 527, 28 A. 32; Fitzsimons & Connell Co. v. Braun, 199 Ill. 390, 65 N.E. 249, 59 L.R.A. 421; Anderson v. Smith, 104 Minn. 40, 115 N.W. 743; Fazio v. Corey Bros. Constructon Co., 43 Utah. 120, 134 P. 747; Houston Transp. Co. v. Grimm, Tex.Civ.App., 168 S.W.2d 892.
In view of the commonly known nature of dynamite, the fact that Snarr used forty sticks of it appears to us sufficient to support an inference that he was intentionally doing an unlawful act, or that he was doing an act not expressly required by a lawful order and not actually or apparently reasonably necessary to execute a lawful order.
If Snarr had not used dynamite and had intentionally set fire to the house for the purpose of thereby destroying the still, it is clear that he would not have been doing an act required by a lawful order. If he had used dynamite, but had placed it outside the still and in or under the house so that house as well as still would necessarily have been damaged or destroyed, he would not have been doing a lawful act, although the still, as well as the house, would have been thereby destroyed. When he placed the dynamite in or "at and about" the still, instead of outside it, he destroyed both house and still. We cannot say, as a matter of law, that placing the dynamite in the still instead of outside it foreclosed the jury from finding that his act was not actually or apparently reasonably necessary to be done in the execution of a lawful order. In short, the testimony as to what he did supports an inference which is in conflict with what the showing says he did.
Snarr may have acted in good faith believing that he was acting in the course of his duty, but if he was mistaken in this belief, the order would not be the cause of the fire. Kwong Lee Yuen & Co. v. Alliance Assurance Co., supra.
Because of the conflicting inference which the jury was free to find from Snarr's conduct, the court did not err in refusing the affirmative charge with hypothesis requested by appellant.
As to the value of the house, plaintiff testified that its reasonable market value was four or five thousand dollars prior to the fire. The evidence is undisputed that nothing of the house was left "when the fire quit burning."
We are of opinion that the verdict was not contrary to the great preponderance of the evidence and that the court did not err in overruling that ground of the motion for new trial.
Appellant's exception to the oral charge is as follows:
Assignment of error 6(c) asserts that the court erred in charging the jury as follows:
In Black's Law Dictionary, Fourth Edition, page 1247, the following definition of "order" appears:
In all of the cited cases, except Port Washington Nat. Bank & Trust Co. v. Hartford Fire Ins. Co., supra, a directive was issued, orally or in writing, sometimes informally, by some official to the actor who actually set the fire or did the act which caused it. In Port Washington Nat. Bank & Trust Co. v. Hartford Fire Ins. Co., supra, the opinion shows no such directive. The cases, however, appear to make no distinction between the situation where a formal directive is issued and the situation where the official himself acts without benefit of such directive.
We perceive no reason why there should be any difference. The phrase, "order of any civil authority," implies an order by authority of law. Words, written or spoken by a public officer, directing another to do an act not authorized by law, would not make lawful the doing of that which is otherwise unlawful. Neither would the absence of such words make unlawful the doing of that which the law authorizes to be done.
Appellant's exception is without merit. The record does not disclose that any person spoke or wrote any words directing any other person to destroy the still or explode dynamite. It appears to us that if the federal agent was acting in compliance with the statute, under the rules we have considered, he was "acting by order of civil authority" and also "acting under civil authority." We see no difference between the two phrases in this case. Indeed, as to the proposition stated by the exception, the court's charge appears favorable to appellant. There was no directive or command issued by any authority except § 5623, Title 26 U.S.C.A.
LIVINGSTON, C. J., and SIMPSON and STAKELY, JJ., concur.