Insurance Company v. Boon
95 U.S. 117 (1877)

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U.S. Supreme Court

Insurance Company v. Boon, 95 U.S. 117 (1877)

Insurance Company v. Boon

95 U.S. 117

Syllabus

1. Where the issues are tried by the court, its finding belongs to the record as fully as does the verdict of a jury.

2. Where the court tried the issues of fact, and its opinion, embodying its findings and the conclusions of law thereon, was filed concurrently with the entry of the judgment, but there was no formal finding of facts, and the court, at the next following term, upon a rule awarded, and, after hearing the parties, made an order that a special finding, with the conclusions of law conformable to that opinion so filed, be entered nunc pro tunc, and made part of the record as of the term when the judgment was rendered, held that the order was within the discretion of the court, and that by it such special finding became a part of the record of the cause, and that the judgment upon it is, without a bill of exceptions, subject to review here.

3. A policy of insurance for one year, issued Sept. 2, 1864, upon certain goods then in a store at the City of Glasgow, Mo., contained the following stipulation:

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.

At an early hour in the morning of the fifteenth day of October, 1864, an armed force of the rebels, under military organization, surrounded and attacked the city. It was defended by Colonel Harding and the forces of the United States under his command, and a battle between them and the rebel forces continued for many hours. When it became apparent to Colonel Harding that the city could not be successfully defended, he, in order to prevent the military stores deposited in the city hall from falling into the possession of the rebel forces, set fire to the city hall. It, with its contents, was consumed. Without other interference, agency, or instrumentality, the fire spread to the building next adjacent to the city hall, and from building to building through two other intermediate buildings to the store containing the goods insured, and

Page 95 U. S. 118

destroyed them. During this time, and until after the fire had consumed such goods, the battle continued, and no surrender had taken place, nor had the rebel forces, nor any part thereof, entered the city. Held that the fire which destroyed the goods was excepted from the risk undertaken by the insurers.

This was an action commenced in September, 1868, to recover $6,000, the amount of a policy of insurance, bearing date Sept. 2, 1864, issued to the plaintiffs below by the AEtna Fire Insurance Company of Hartford, Conn., for one year, upon certain goods, wares, and merchandise then in their store at Glasgow, Mo., which were destroyed by fire Oct. 15, 1864.

By written stipulation, a jury was waived, and the issues of fact tried by the court.

On April 28, 1874, the court filed a written opinion declaring their finding of facts upon the evidence, with their conclusions of law thereon, and rendered judgment accordingly for the plaintiffs. No other findings of fact were had, nor was a bill of exceptions tendered at that time. On the 13th of July following, the defendant applied to the circuit judge in vacation for a rule on the plaintiffs to show cause why the findings of fact and the conclusions of law thereon should not be stated by the court, and a bill of exceptions signed and filed nunc pro tunc. Leave for that purpose having been granted, execution of the judgment was stayed. August 22, the parties stipulated in writing that the rule should be heard before the district judge at chambers. Upon the hearing, he, on the twenty-fourth day of that month, granted the rule. At the September Term of the court, the findings of fact and conclusions of law thereon were duly entered nunc pro tunc as of the April Term, and the bill of exceptions was signed by both judges. The findings, so far as they involve any question argued by counsel here, are as follows:

"That the policy, which was duly executed by the defendant and delivered to the plaintiffs, contained the following express provisions, 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

Page 95 U. S. 119

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."

That the facts and circumstances showing the cause of the fire are as follows, namely:

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 of the United States by the military forces and a portion of the Army of the United States engaged in the civil war then, and for more than three years theretofore, 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' said store, three buildings, nevertheless, being located in the intervening space, not, however, in actual contact with either. Colonel Chester Harding, an officer of the United States 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 fifteenth day 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 one thereof penetrating the said store of the plaintiffs, but without setting fire thereto or causing any fire therein, and some of said shell killing soldiers and citizens. The city was defended by Colonel Harding and the military forces under his command, and battle 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 city.

Page 95 U. S. 120

During the battle, and when the government troops had been driven from their exterior lines of defense, 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 said rebel forces, ordered Major Moore, one of the officers under his command, to destroy them.

In obedience to this order to destroy the said stores, and having no other means of doing so, Major Moore set fire to the said 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.

It was conceded that the order of Colonel Harding was, in the exigency, a lawful and discreet use of the military authority vested in him.

The court declared, as conclusions of law upon the facts found, that the defendant was not exempted by virtue of the said proviso from liability to the plaintiffs under said policy, and that the plaintiffs were entitled to judgment for $6,000, the value of the property destroyed, with interest thereon from July 1, 1865, and costs of suit.

On the 7th of October, 1874, the defendant sued out this writ of error.

Page 95 U. S. 123

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