239 Pa. 569 | Pa. | 1913
Opinion by
This is an action of assumpsit on a burglary insurance policy issued by the defendant company to the plaintiff to insure him to the extent of $2,000 against direct loss by burglary of merchandise between April 29,1910, and April 29, 1911, occasioned by its felonious abstraction from the premises occupied by him in the building known as 1023, 1025 and 1027 Race street, in the City of Philadelphia. The case was submitted to the jury and a verdict was returned for the plaintiff. On motion of counsel the court below entered judgment for the defendant non obstante veredicto. The plaintiff has taken this appeal.
Clause 8 of the “general agreements” provides: “This policy shall be void if the conditions or circumstances of the risk are materially changed without the written consent of the company or if the assured attempts in any way to defraud the company or if the policy is assigned without the written consent of the company.”
The facts are undisputed. The plaintiff is a manufacturer of shirt waists and ladies’ skirts, and carries on the business on the fourth floor of the six-story building- used for various purposes at 1023-25-27 Race street, in the City of Philadelphia. The
The defendant relied on a breach of the warranties contained in the policy to prevent a recovery for the loss. The learned court submitted to the jury to determine whether the plaintiff had complied with the conditions of the policy requiring him to employ a private watchman on the premises. The engineer who acted as watchman testified that on the night of the burglary he left the building about midnight and did not return until five in the morning, and that his absence was due to the fact that it was necessary for him to work during part of the day because he had to be with the new engineer, and that he went away to get some rest during the hours indicated.
The defense interposed by the defendant and sus
These are the questions which have been argued by counsel and are now for consideration.
The view we take of the case does not require us to discuss the second and third propositions suggested by .counsel for the appellant. We are of the opinion that the word “premises” means the fourth floor of the building and not the building itself, and that the policy required a watchman to be kept within the premises when not open for the transaction of business.
The language of the policy defines the word “premises” so clearly and distinctly that there is no doubt or uncertainty as to the meaning with which the parties used it in the contract. The plaintiff occupied the fourth floor of the building, the other five floors being occupied by other tenants. The policy indemnifies the assured for “direct loss by burglary of merchandise ......occasioned by its felonious abstraction from the store or rooms actually occupied by the assured and described in the said schedule (hereinafter called the
Was there a private watchman employed within the premises when not open for the transaction of business at the time the agreement was entered into or subsequently during the currency of the policy, as required by the contract? The policy stipulated that a private watchman “is employed within the premises when not open for the transaction of business,” and that such service should “be continued during the currency of this policy.” It will be observed that there were both an affirmative and a promissory warranty. If the word “premises” means the fourth floor of the building, and not the building itself, neither of these stipulations was complied with by the assured. We have already stated the undisputed facts from which it appears that while the owner of the building employed a watchman for it
The judgment is affirmed.