Pacific Union Club v. Commercial Union Assurance Co.

Action on fire insurance policy issued, by defendant upon plaintiff’s property situated in the city of San Francisco. A demurrer to the amended answer was sustained and, defendant declining to further amend, judgment passed for plaintiff in the sum of $1,765, from which defendant appeals. The fire which is alleged to have destroyed plaintiff’s property occurred April 19, 1906, the day following the earthquake of April 18th of that year.

The company insured the plaintiff for the term of twelvemonths “against all direct loss or damage by fire except as. hereinafter provided, ’ ’ and among other exceptions was the following: ‘ ‘ This company shall not be liable for loss caused directly or indirectly by invasion, earthquake, riot, civil war or commotion. ...” Basing its defense upon this excepv tion, it is alleged in the answer as follows:

Assuming, as we must, under the admissions of the demurrer, that defendant could have proven that the cutting off of the water supply caused the loss, but for which no loss would have occurred, the sole question is: Was the loss in legal contemplation caused either directly or indirectly by the excepted peril, earthquake?

Eespondent states that…