cause a motion for writ of restitution, in which all the foregoing facts were set forth, and also that the judgment against John Simpson, garnishee, as above referred to, had not been satisfied. It was accordingly asked that said John Simpson might be discharged and exonerated from paying the judgment rendered against him as such garnishee under execution, and to the end that he, said W. S. Simpson, might be restored to his full rights in the premises. Before a ruling was had upon such motion, the original cause came on for retrial in said court, resulting in a further judgment on April 3, 1902, in favor of plaintiff. Afterward, and on the same day, said court (Judge Scott presiding) ruled on said motion, sustaining the same, and ordering that the garnishee, John Simpson, be discharged and exonerated from payment of the judgment against him as such. From such order the plaintiff, Decatur, appeals, and such is the cause second above entitled.

490 Based upon the facts as referred to in the foregoing statement, the appellant in the garnishment proceedings, John Simpson, moves this court to discharge the judgment standing against him as such garnishee, and the cause is submitted upon such motion, and without argument upon the merits of the appeal. While it is true that an appeal does not operate to stay the enforcement of a money judgment, no supersedeas bond being given, still it is equally true that an execution issued upon such judgment, and all proceedings had thereunder, are dependent for their validity upon the judgment being sustained. If property has been taken under such execution, restitution must be made: Code, sec. 4145. Of necessity, the rule must operate to release property held under garnishment, as well as property of a more tangible nature held under direct levy. Nor can it be said, in reason or upon authority, that a modification of the rule of the statute is called for, when it appears that it had been judicially determined under garnishment proceedings that a garnishee holds property or credits belonging to the judgment debtor, and a judgment is rendered against such garnishee requiring him to deliver the property in his hands, or pay over the amount of his indebtedness, or sufficient thereof to satisfy the principal judgment. The judgment, which alone authorized the garnishment being erroneous, all proceedings had thereunder are, as between the immediate parties, ipso facto void and of no effect: Waples on Attachment, 345, 346.

It is said in argument that the garnishment, and the judgment thereunder, ought not to be released, because of the fact that

the principal case had been again tried, and another judgment.

rendered in favor of the plaintiff. We 491 are unable to see how such fact can affect the question. The garnishment had vitality only through the judgment upon which it was predicated. When the judgment became extinguished, the garnishment, which was but an incident to it, partook of its fate, and the right of the judgment defendant to have restitution made became absolute eo instanti. There is no authority for the proposition that a garnishment proceeding can be kept alive pending a new trial, and awaiting the possible arrival of a new judgment and execution under which it may again be fully vitalized, and to have effect as of the time when the garnishment proceedings were first instituted. In other words, garnishment proceedings are not susceptible of affiliation with a judgment having the relation only of a foster or step parent.

It follows from what we have said that the trial court was right in sustaining the motion to discharge the garnishee, John Simpson, and the order of discharge appealed from in the second case above entitled is affirmed. There being no further necessity for considering the appeal in the case first above entitled, it is dismissed.

Dismissed on first appeal. Affirmed on second appeal.

The Principal Case is cited in the recent monographic note to Cowdery v. London etc. Bank, 96 Am. St. Rep. 132, on the reversal of judgments.

VORSE v. JERSEY PLATE GLASS INSURANCE CO. [119 Iowa, 555, 93 N. W. 569.]

INSURANCE.-The Breaking of Plate Glass from an Explosion of gas generated from gasoline used in the building is not due to the blowing up of the building, within the meaning of a policy exempting the insurer from any loss "caused by the blowing up of buildings." (p. 331.)

INSURANCE.-The Breaking of Plate Glass from an Explosion of gas ignited by a match is not caused by a fire, within the meaning of a policy exempting the insurer from loss "by or in consequence of any fire. (p. 334.)

INSURANCE POLICY-Construction in Favor of Insured.—A policy of insurance susceptible of two constructions should be given the one most favorable to the insured. (pp. 331, 335.)

INSURANCE POLICY-Ordinary Meaning of Words.-The language of an insurance policy is to be given its ordinary and popular signification, rather than its technical meaning. (pp. 333, 335.)

McVey, McVey & Graham, for the appellant.

Edward Davis and C. C. & C. L. Nourse, for the appellee.

556 DEEMER, J. The action is on a policy insuring plaintiff against loss or damage by breakage, through accident, of certain plate glass in a building owned by her in the city of Des Moines. The policy contained these, among other, stipulations: "This company is not liable to make good any loss or damage which may happen by or in consequence of any fire, . . . . and is not. liable for any loss or damage to glass caused by the blowing up of buildings." During the life of the policy the insured property was broken and destroyed, and the cause thereof, according to the agreed statement of facts on which the case was tried, was as follows: "3. That the cause of said breakage and destruction in said west storeroom was the explosion of gas generating from gasoline being used in the rear of said room for the purpose of cleaning clothes, which gas was ignited by a match or light in the room, and said explosion was not caused willfully or by intention on the part of this plaintiff or her tenant; that the said breakage and destruction of the glass and explosion in said west room occurred prior to the fire in said building. 4. That on the same day other plate glass in the said building was broken and destroyed as set out in count two of plaintiff's peti tion as amended and substituted; that said glass was broken by firemen intentionally, and in order to gain access to the building for the purpose of extinguishing a fire which was then burning in the said storeroom; that the doors were fastened, and it was necessary to break in the front of the building for 557 the purpose of gaining admission to put out the fire." During the trial the plaintiff withdrew the second count of her petition; hence we have nothing to consider but the statements above madeas to how the damage occurred.

1. Defendant contends that the damage was caused by the "blowing up" of the building. These words should be given their ordinary signification, in arriving at the intent of the parties; and we think, when defined in this light, and applied tothe agreed facts which we have quoted, that it does not sufficiently appear that the building was blown up. Ordinarily theterm means to scatter or destroy by an explosion of some kind. When we speak of a building as having been blown up, we ordinarily intend to convey the notion that its constituent parts have been scattered, and the integrity of the structure destroyed. This is evidently what is meant by the terms employed in the

policy now before us. In any event, the policy, if susceptible of two constructions, should be given that one which is most favorable to the insured: Collins v. Merchants' etc. Ins. Co., 95 Iowa, 540, 58 Am. St. Rep. 438, 64 N. W. 602; Goodwin v. Provident etc. Assn., 97 Iowa, 226, 59 Am. St. Rep. 411, 66 N. W. 157. With this rule in mind, we have no difficulty in arriving at the conclusion that the breakage was not due to the blowing up of the building. See, as supporting these conclusions, Breuner v. Liverpool etc. Ins. Co., 51 Cal. 101, 21 Am. Rep. 703.

2. The next contention made by defendant is much more difficult of satisfactory solution. It is argued that the damage to the glass happened by, or was in consequence of fire. The real point made is that the explosion was due to, or was in consequence of fire, if not fire itself. The term "explosion" has no fixed and definite meaning either in ordinary speech or in law. It may be described, in a general way, as sudden and rapid combustion, causing violent expansion of the air, and accompanied by a report. It may and does vary in degrees of intensity and in the vehemence of the report, and it is not always due to the 558 presence of fire. Indeed, it may result from decomposition or chemical action. In the case before us, it was undoubtedly caused by fire, or as stated in the agreed statement of facts "by a match or light in the room" which transformed the gasoline gas into heat which was propagated from one particle of air to another and finally against the glass, the shock of which caused the breakage complained of. The stipulation says that the breakage and explosion occurred prior to the fire in the building which we assume means that the glass was broken before any part of the structure or of the goods stored therein were ignited, for it is clear that there must have been a match or light in the room which caused the explosion. Did the breakage, then, happen by or was it in consequence of any fire?

The question is a nice one, and by no means free from doubt; but we are inclined to the view that the loss did not happen by nor was it in consequence of any fire as those terms are used in the policy in suit. Of course, but for the lighted match or other light in the room, the explosion would not have happened, and the explosion itself was due to rapid combustion. But in ordinary parlance,the damage was due to the explosion or to the concussion produced thereby, or, as said in the agreed statement of facts, the explosion and breakage occurred prior to the fire in the building. The lighted match or other light in the building was not contemplated by the parties as the fire which was

excepted by the terms of the policy. It was not a destructive fire against the immediate effects of which the condition in the policy was intended as a protection. It was, it is true, the possible means of putting the destructive force in motion, but was not the excepted peril. Had there been no fire after the explosion, it seems to us it could not fairly be claimed that the damage done the glass was due to or in consequence of any fire. The immediate cause of the breakage was concussion produced by the ignition of gas, it is true; but that such an effect 559 was due to or in consequence of fire as that term is ordinarily used or as the parties intended it in this case is hardly supposable. In Wood on Insurance, volume 1, second edition, page 245, it is said: "Where, however, the explosion is caused by fire the damage must be traceable directly to the fire as the proximate cause, and not merely as the result of the explosion. The fire must be shown to be the causa proxima and not the causa remota. If the injury is entirely due to concussion, the fact that it was caused by fire does not make the fire the proximate cause, but the cause of the cause, and, consequently, the causa remota instead of the causa proxima. 'It were infinite for the law,' says Lord Bacon, 'to consider the causes of the causes, and their impulsion one of another. Therefore, it contenteth itself with the immediate cause, and judgeth of acts by that, without looking to any further degree.' 'If it were not so,' said Byles, J., ‘and a ship was in the neighborhood of Etna or Vesuvius, and was violently shaken by an eruption, that would be damage by fire; or if a gun were fired off, loaded with small shot, among crockery, that would be damaged by fire; or it might be said that, if the heat of the sun was too great, that would be damage by fire.'"

Policies of insurance should not have a technical construction for the purpose of defeating the insured. He has nothing to do with the wording of the policy, and must accept it as tendered. Hence, the rule of construction hitherto quoted. Indeed, we think language such as that on which defendant relies should be given its ordinary and common signification, and not its scientific and technical meaning. The insured went to the company for a policy of insurance on the plate glass in her building, and received a policy providing indemnity for breakage not caused by, nor in consequence of, any fire. She had the right to assume that the policy covered damage by an explosion, such as the one in question, and was not called upon to go to some scientist for a technical definition of fire. After all, the question is, What would an ordinary man understand from the use

560