A policy of this character was the subject of litigation in the Massachusetts Supreme Court in a case in which the system is il lustrated. It was to continue ten years if the insured should so long live, but in case of his death before that time, the dividends would not inure to the benefit of his estate, but be held by the company for the benefit of other policy holders and forfeited by him. The estate of the deceased received only the amount of the policy, which, however, would be forfeited for non-payment of premiums during the tontine term; policies of this character are kept in classes of ten, fifteen, or twenty years, called respectively the ton tine periods, and accounts are kept with the funds of each class to ascertain the amount due upon each policy at the expiration of its tontine term, at which time the surplus profits are apportioned equitably among such policies as complete the term ; Pierce v. As surance Society, 145 Mass. 56, 12 N. E. 858, 1 Am. St. Rep. 433. Under such an insurance the failure of the company to place all divi dends accruing upon a policy in a reserve fund in accordance with the terms of the policy did not excuse the non-performance of his contract by the insured, and a suit by such policy holder for an accounting by the company cannot be maintained on the ground of the failure to keep and invest the fund accruing from the dividends sepa rately; Bogardus v. Ins. Co., 101 N. Y. 328, 4 N. E. 522. No trust relation exists between the company and the insured but it is simply one of contract measured by the terms of the policy; Cohen v. Ins. Co., 50 N. Y. 610, 10 Am. Rep. 522 ; Hencken v. Ins. Co., 98 N. Y. 627, affirming 11 Daly (N. Y.) 282. The situation of the parties is that of debtor and creditor merely, the amount of the debt being determined by the equitable apportionment to be made by the corporation through its officers ; Pierce v. Assur. Soc., 145 Mass. 56, 12 N. E. 858, 1 Am. St. Rep. 433. The ap portionment of the fund not absolutely conclusive upon the policy holders. It is prima facie right, but may be shown to be based on erroneous principles ; id.
The holder of a policy who has the option at the expiration of the tontine period to withdraw his share of the surplus is entitled to the inspection of books and papers, and a rule of court authorizing such inspection will be granted in order that he may intelligently exercise his options ; Ellinger v. Assur. Soc., 132 Wis. 259, 111 N. W. 567, 11 L. R. A. (N. S.) 1089.
Fire Insurance. A contract by which the insurer, in consideration of a certain pre mium received by him, either in a gross sum or by annual payments, undertakes to in demnify the insured against all loss or dam age which he may sustain to a certain amount, in his property mentioned in the policy, by fire during the time agreed upon.
Fire insurance is said to be in effect a contract of indemnity against loss or dam age suffered by an owner or person having an interest in the property insured. Donnell v. Donnell, 86 Me. 518, 30 Atl. 67.
The principles applying to the subject are, in general, those governing marine policies and other kinds of insurance of property against the various perils which attend its use and ownership, and therefore the point to be mainly considered, as applied to fire insurance alone, is the exact definition of the peril insured against. With respect to the nature of the contract as an indemnity, the necessity of an interest in the property, the policy and the application, the effect of warranties and representations, respectively, and the loss and its adjustment, reference should be had to the discussion of the sub ject generally, supra, and in the various titles referred to.
It has frequently been said that to re cover under a fire policy there must be an actual fire or ignition, and that it is not suf ficient that there has been an injurious in crease of heat which caused damage to the insured property, while nothing had taken fire which ought not to be on fire. The au thority usually relied upon, for this general statement, is the early and leading case of Austin v. Drewe, 6 Taunt. 436, but this case has been much criticised; see Scripture v. Ins. Co., 10 Cush. (Mass.) 356, 57 Am. Dec. 111; 1 Bennett, Fire Ins. Cas. 104; Case v. Ins. Co., 13 Ill. 676; May, Ins. § 402.
There can be no recovery for damage by smoke from a lighted lamp when there is no ignition outside of the lamp ; Fitzgerald v. Ins. Co., 30 Misc. 72, 62 N. Y. Supp. 824; or if the smoke proceeded from a fire "out of place," it is no defense that it originated in a fire in the place intended for it ; Collins v. Ins. Co., 9 Pa. Super. Ct. 576 ; and a furnace fire built of unsuitable material, which be comes uncontrollable and develops extraor dinary and excessive heat, so as to char woodwork and furniture and generally in jure personal property, is a hostile fire, al though there is no ignition; O'Connor v. Ins. Co., 140 Wis. 388, 122 N. W. 1038, 1122, 25 L. R. A. (N. S.) 501, 133 Am. St. Rep. 1081, 17 Ann. Cas. 1118. Damage to the interior of a boiler resulting from over-heating and absence of water in the boiler is not covered by a fire policy ; American Towing Co. of Baltimore v. Ins. Co.; 74 Md. 25, 21 Atl. 553.
A fire in a theatre, caused by the exces sive heating of its walls by a fire outside, was held to be covered by the policy ; Sohier v. Ins. Co., 11 Allen (Mass.) 336; and when a building is blown up by gunpowder to pre vent the spreading of fire, the insurer against fire is liable if, but for being blown up, it would have been burned ; City Fire Ins. Co. v. Corlies, 21 Wend. (N. Y.) 367, 34 Am. Dec. 258; Greenwald v. Ins. Co., 3 Phila. (Pa.) 323 ; Miller v. Ins. Co., 41 Ill. App. 395 ; L. R. 3 Exch. 71. These cases are distinguished from explosion, which is not fire, within a fire policy, when it occurs some distance off; 19 C. B. N. S. 126; Caballero v. Ins. Co., 15 La. Ann. 217 ; even though it was caused by fire; id.; and when the explosion is within the building, there must be ignition to bring it within the fire insurance; St. John v. Ins. Co., 11 N. Y. 516; but damage from fire caused by explosion on the premises is cov ered; Scripture v. Ins. Co., 10 Cush. (Mass.) 356, 57 Am. Dec. 111; Renshaw v. Ins. Co., 103 Mo. 595, 15 S. W. 945, 23 Am. St. Rep. 904; (unless it is expressly excepted ; Green wald v. Ins. Co., 3 Phila. [Pa.] 323) ; so also if the damage is from explosion caused by fire, as where a steamboat was burned as the result of an explosion of gunpowder; Wa ters v. Ins. Co., 11 Pet. (U. S.) 213, 9 L. Ed. 691;' or when coals were thrown out of the stove; Daws v. Ins. Co., 127 Mass. 346, 34 Am. Rep. 384. In this case the policy con tained the provision that "if a building shall fall, except as the result of a fire," the in surance should cease; and this was held to apply to inherent defects in the building. And when, under a similar policy "against fire originating in any case," there occurred an explosion and loss, it was held immaterial whether the fire resulted in combustion or explosion; Renshaw v. Ins. Co., 33 Mo. App. 394.