PIERRE v. KANSAS CITY CASUALTY CO. 347
July 1914 Opinion Per MOUNT, J.
[No. 11980. Department Two. July 3, 1914.]
WILLIAM H. PIERRE, as Administrator etc., Respondent, v.
KANSAS CITY CASUALTY COMPANY, Appellant. «1»
INSURANCE - ACCIDENT INSURANCE - ACTIONS - CAUSE OF FIRE -
EVIDENCE - QUESTION FOR JURY. In an action upon an accident
policy insuring against accidental injuries "by the burning of a
building while the beneficiary is therein," there is sufficient
evidence to make a question for the jury as to whether the
beneficiary's dress caught fire from the "burning of a building,"
where the fire was discovered when she was sitting near a stove
in the dining room, and she supposed that a blanket caught fire
from the stove, but it appears that she had just previously been
to the kitchen, where a burning stick was found on the floor, the
linoleum and carpet in front of the kitchen range were on fire,
fire had extended to and burned the floor of the next room, and
it is reasonably certain that her dress caught fire from the fire
in the kitchen.
Appeal from a judgment of the superior court for Chehalis
county, Irwin, J., entered November 22, 1913, upon the verdict
of a jury rendered in favor of the plaintiff, in an action
upon an accident insurance policy. Affirmed.
William E. Campbell, for appellant.
A. Emerson Cross and Dan Pearsall, for respondent.
MOUNT, J. - This action was brought by William H.
Pierre, as administrator of the estate of Christine A. Pierre,
deceased, to recover the sum of $5,000, upon an accident
policy of insurance, issued by the defendant to William H.
Pierre. Christine A. Pierre, his wife, was named in the policy
as the beneficiary; and section 10 of the policy insured her
against the effect of external, violent, and accidental injuries
caused, among other things, "by the burning of a building
while the beneficiary is therein." The policy provided that, in
event of the loss of the life of the beneficiary under this
section, the amount payable should be paid to the estate of the
«1» Reported in 141 Pac. 690.
348 PIERRE v. KANSAS CITY CASUALTY CO.
Opinion Per MOUNT, J. 80 Wash.
beneficiary. It is alleged in the complaint that Mrs. Pierre
lost her life by means of burns caused by the burning of a
building while she was therein. The answer denies this fact.
Upon the trial before a jury, a verdict was returned in favor
of the plaintiff. The defendant has appealed.
It is argued by the appellant that there was no sufficient
evidence to go to the jury; and for that reason the court
erred in not sustaining the appellant's motion for a directed
verdict. This is the only question presented upon the appeal.
The facts, as shown by the respondent's evidence, are about
as follows: No evidence was introduced on behalf of the
appellant. The Pierre residence was a one-story cottage,
consisting of living room, dining room, kitchen, two bedrooms,
pantry, and bath. One of these bedrooms was entered from the
dining room and the other from the kitchen. Assuming the
house faced toward the east, the bedroom entered from the
dining room was directly north. An airtight heating stove was
situated in the northeast corner of the dining room. The
kitchen was immediately to the west of the dining room. A
large kitchen range occupied the northeast corner of the
kitchen. The bathroom was directly west from the kitchen
range. The kitchen bedroom was directly north of the kitchen.
There was a passageway about four feet in width between
the bathroom and the kitchen range, which passageway led
past the front of the kitchen range to the kitchen bedroom.
The kitchen floor was covered with linoleum; and there was a
piece of carpet extending from the kitchen bedroom on the
linoleum in front of the kitchen range. Between the range
and the bathroom, and standing partly in the bathroom door,
was a clothes rack, upon which some baby's clothing was
hanging. Mr. and Mrs. Pierre were living in this home, in
the city of Aberdeen, on the 28th day of March, 1912; and
the policy above mentioned was in force.
About 10 o'clock in the morning on that date, Mrs. Pierre
was attempting to give her three-weeks old baby a bath. Up
to that time, Mrs. Pierre had not bathed her baby; a trained
PIERRE v. KANSAS CITY CASUALTY CO. 349
July 1914 Opinion Per MOUNT, J.
nurse who had gone the evening before had previously done
this; and Mrs. Pierre was endeavoring to bathe the baby
with the assistance of her servant girl. They had arranged
a small bathtub in the dining room near the heating stove,
and also a chair upon which was baby's clothing, and a rocker
in front of this stove. After these preparations, Mrs. Pierre
went into the kitchen to the rack containing clothing in front
of the kitchen range, there obtained some of the baby's
clothing, and returned to the dining room and closed the door. At
this time, there were fires in both the dining room stove and
in the kitchen range. After Mrs. Pierre had closed the dining
room door and the servant girl had gone on to the back
porch or into the basement, she heard Mrs. Pierre cry, "I am
on fire." Whereupon she ran into the dining room and found
Mrs. Pierre with the baby undressed except its undershirt.
Mrs. Pierre's dress was on fire along her right leg. After an
unsuccessful attempt to smother the flames, and to remove
Mrs. Pierre's dress, the servant girl took the baby and
started out of the back door through the kitchen. Mrs.
Pierre followed the servant girl into the kitchen, and was by
her directed to get a comfort or quilt and wrap up in it and
to keep out of the wind. Mrs. Pierre, after obtaining the
quilt, followed the servant girl out on to the porch and
rolled on the floor in an attempt to put out the flames.
Neighbors soon gathered about her, the fire upon her
clothing was extinguished, and she was carried into the house.
She had been severely burned, so that she soon after died
from the effects of the fire. While she was being carried into
the house, it was discovered that the linoleum and carpet in
front of the kitchen range were on fire. The fire had
extended into the bedroom to the north of the kitchen, and was
burning upon the floor in that room. This fire was immediately
extinguished, and it was discovered that the floor had
burned so that the nails in the tongues and grooves of the
floor were exposed. The house was full of smoke.
350 PIERRE v. KANSAS CITY CASUALTY CO.
Opinion Per MOUNT, J. 80 Wash.
A physician was immediately called. When the physician
arrived, Mrs. Pierre was still conscious and remained so for
a few hours. The physician asked her how she caught fire.
She told him that it was caused by the stove; that she was
bathing the baby as she was sitting by the stove and that the
blanket caught fire from the front of the stove. The physician
noticed that the stove had a fire in it but that the stove
door and the draft were closed. At the time the fire was
extinguished in the kitchen bedroom and in front of the
kitchen range, a piece of stovewood partially burned and
burning was found upon the floor.
It is argued by the appellant, from these facts, that there
was no sufficient evidence to go to the jury of the fact that
the fire which burned Mrs. Pierre was caused by the burning
of the building. We are satisfied, from a reading of the
abstract of the evidence, that the evidence tending to prove that
the fire which burned Mrs. Pierre and caused her death
originated from the burning of the building was sufficient to be
submitted to the jury. No one saw how the fire occurred.
It is apparent from the record that Mrs. Pierre herself did
not know how it started. She was evidently sitting by the
dining room stove at the time she discovered that her
clothing was on fire. She naturally supposed that she caught
fire from the stove. She apparently did not know that there
was a fire on the floor of the kitchen. She had been to the
place where evidently the fire was burning on the kitchen
floor a few minutes before she discovered herself to be on
fire. We find no evidence in the record that the fire in front
of the kitchen range and in the bedroom could have originated
from the fire which was burning the clothing of Mrs. Pierre,
because it is not shown that she was at that place except when
she went to obtain the baby's clothing from the clothes rack.
So it is reasonably certain that the fire was burning upon the
floor in the kitchen at the time she was there prior to the
time she discovered herself to be on fire, and that her dress
became ignited at that time. Not knowing of that fire, it was
PIERRE v. KANSAS CITY CASUALTY CO. 351
July 1914 Opinion Per MOUNT, J.
natural for her to suppose that she in some manner had
caught fire from the stove by which she was sitting at the
time she discovered that her clothing was burning.
It is apparently conceded by the appellant that, if the
clothing of Mrs. Pierre caught fire from the fire which was
burning the building, then the appellant is liable under the
policy. But it is argued that, in submitting the case to the
jury, the court permitted the jury to guess and speculate as
to the origin of the fire which caused Mrs. Pierre's death. It
is no doubt the rule that the jury will not be permitted to
speculate between causes for which the appellant would and
would not be liable. But where the circumstances are such
as to make it reasonably certain that the cause of the injury
was one for which the appellant was liable, the evidence is
sufficient to go to the jury. The circumstances disclosed by
the record point almost conclusively to the fact that the
injury to Mrs. Pierre was caused by fire which was burning
the building in the kitchen, and was not caused by the dining
room stove. The court very clearly instructed the jury that,
if the fire which caused Mrs. Pierre's death was caused by
the dining room stove, that then there could be no recovery;
but if they found by a preponderance of the evidence that
the fire which caused her death was the fire in front of the
kitchen range and which was burning the building, then the
appellant would be liable. We are satisfied that there was
sufficient evidence to go to the jury upon this question, and
the judgment is therefore affirmed.
CROW, C.J., PARKER, MORRIS, and FULLERTON, JJ., concur.