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April 6, 1979


Appeal from District Court, Redwood County; Hon. Walter H. Mann, Marshall 56228, Judge. Affirmed

Heard before Rogosheske, Peterson and Kelly, JJ., and considered and decided by the court en banc.

The opinion of the court was delivered by: Kelly

1. A fire may be hostile although burning at its usual rate if it burns substantially longer or in some fashion other than expected.

KELLY, Justice.

This is an appeal from a judgment entered in the District Court of Redwood County. The plaintiff brought this action alleging that defendant-insurer was liable under a fire insurance policy for a loss occasioned by the death of a number of plaintiff's sows.

The trial court, after trying the case on a stipulated set of facts, found that the loss was covered under the terms of plaintiff's policy and accordingly entered judgment for the plaintiff. We affirm.

The issue presented on appeal is whether a loss caused by excessive heat from a fire intentionally kindled and wholly confined to the furnace wherein it was intended to burn is covered under an insurance policy providing coverage for all losses or damage by fire.

The facts are not in dispute. The plaintiff was insured under a "Minnesota Standard Township Mutual Fire Insurance Policy" issued by defendant. In 1973, the plaintiff constructed a hog barn on his farm for use in farrowing hogs. The barn was heated by an L. B. White furnace which was located just outside the building and which blew hot air into the barn by means of a fan. The furnace was controlled by a thermostat which could be adjusted to shut off the fan and furnace at a pre-set temperature.

On January 1, 1976, the plaintiff discovered that 15 of the 16 sows then in the hog barn were dead. Subsequent investigation revealed that the sows died from an inadequate supply of oxygen in the hog barn, caused by increased temperature. The high temperatures resulted from a "short" which rendered the thermostat inoperable allowing the furnace to blow hot air into the barn until the high limit control, set at 120 degree, shut down the furnace. The thermostat was set at 75 degree and this was normally as high as temperatures inside the building would rise. At all times the fire inside the furnace burned and produced heat at its usual rate and was confined within the furnace causing no damage to the hog barn or to the furnace nor producing any soot or other foreign material.

Defendant refused to compensate plaintiff, claiming that the loss was not recoverable under his policy as it was the result of a so-called "friendly" rather than "hostile" fire.

The hostile fire doctrine is said to have originated in the early English case of Austin v. Drew, 4 Campb. 360 (1815). *fn1 In that case, sugar being refined in plaintiff's factory was damaged by excessive heat and smoke. The sugar was contained in various rooms of an 8-story building through which ran a flue supplying the heat necessary for the refining process. At the top of the flue was a register which was normally kept open when the fire was high. An employee started the fire without opening the register. As a result, the fire overheated, smoking up the rooms containing the sugar and causing the damage complained of. The court, in denying recovery, stated:

"I am of the opinion that this action is not maintainable. There was no more fire than always exists when the manufacture is going on. Nothing was consumed by fire. The plaintiff's loss arose from the negligent management of their machinery. The sugars were chiefly damaged by the heat; and what produced that heat? Not any fire against which the company insures, but the fire for heating the pans, which continued all the time to burn without any excess. The servant forgot to open the register by which the smoke ought to have escaped and the heat to have been tempered." 4 Campb. 361.

From this opinion has emerged a rule of law known as the hostile fire doctrine. It is recognized in a majority of jurisdictions where the issue has been raised, 44 Am. Jur, 2d, Insurance, § 1348; 5 Appleman, Insurance Law and Practice, § 3082, although it has been criticized by many commentators. See Vance, Friendly Fires, 1 Conn. Bar J. 284; Reis, The Friendly Versus Hostile Fire Dichotomy, 12 Vill. L. Rev. 109; Morrison, Concerning Friendly Fires, 3 Boston C. Indus. & Com. L. Rev. 15. In brief, the rule generally states that a fire which is intentionally kindled and which remains at all times confined to the place where it was intended to be will be characterized as friendly and will not subject the insurer to any liability for the resulting loss. By adopting this doctrine, courts have in effect established a presumption, seemingly irrebuttable, that the parties to the transaction, particularly the prospective insured, were aware of this doctrine and contemplated its inclusion in the policy. Common sense tells us that this is more than likely not the case. When an insured buys a fire insurance policy which "covers all losses or damage by fire" his expectation is that it will cover all unintentional losses from fire, except listed exclusions, regardless of the nature or character of the fire. The doctrine thus seems to protect the insurer at the expense of the unwitting insured.

In Minnesota, this problem is avoided because of the judicially created limitations on friendly fires. In L. L. Freeberg Pie Co. v. St. Paul Mutual Insurance Co. 257 Minn. 244, 100 N.W.2d 753 (1960), we joined a minority of courts which require that a friendly fire, in addition to the elements listed above, be non-excessive. In the Freeberg case, the thermostat on a bake oven failed and, as a result, the flame inside the oven continued to build up to such a degree as to seriously warp and damage the oven. The lower court determined that, ...

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