Kenniston v. Mer. County Mutual Ins.

There must be a new trial. On the facts stated, the court cannot determine whether the loss is, or is not, within the risks of the policy.

If the damage was from lightning without any combustion, it is clearly not within the terms of the contract of insurance. The policy does not provide against every damage which may arise from the action of the electric fluid.

The charter of the insurance company indeed refers to lightning, but it is only to authorize the defendant to insure against losses by fire, which “ shall happen by lightning.” This is a very different thing from direct losses by lightning, both as regards their origin, nature, predisposing causes, development and effects, and in reference to the possible application of means to prevent and to limit the damage.

The terms of the policy, too, were to pay within a certain time after the destruction “ by reason or by means of fire.” Fire is the one loss insured against ; and lightning, though not excepted from the sources of fire, is no where, either in the charter or policy itself, directly provided against.

It is true, that there was evidence tending to show that the building, insured in the policy now in question, was set on fire by the lightning ; and if such was the fact, this action is well brought. But this fact is not made certain by the evidence, and the question must be submitted to a jury.

New trial ordered.