83 Pa. 64 | Pa. | 1877
delivered the opinion of the court, January 2d 1877.
We cannot approve of the answers of the court to the plaintiff’s (defendant in error) 1st and 2d points. Kroegher accepted the policy with the express stipulation therein contained, that the use of petroleum, or any product thereof upon the premises insured, without written permission, would avoid it. Granted that carbon oil is usually kept for sale as part of the stock of a country store ; the same may be said of gunpowder, and, perhaps, the reason for the prohibition maybe discovered in the fact that such a custom does exist, for if these articles were never found among such stocks this provision would be useless. It is probable that this provision would not apply to the oil used in lighting the premises, for such a use has, in these days, become a necessity for all buildings in the country in which light is required during the night. But it is not to such use that the points refer, but to the use of this product as an article of merchandise, and there can he no doubt but that, as such, it is in terms prohibited by the policy. The cases cited by the defendant in error are not in point. The policy in suit in the Citizens’ Insurance Co. v. McLaughlin, 3 P. E. Smith 485, admitted of the storage of benzole on the premises, and the fact of its being used in the manufacture of patent leather made the inference irresistible, that its use for that purpose was contemplated in the permission to keep it in a shed adjacent to the factory. The question in the case of the Franklin Ins. Co. v. Updegraff, 7 Wright 350, was whether the policy included hardware, china and glassware, under the general designation of “ merchandise such as is usually kept in country stores,” by the rules of the company these articles being scheduled as hazardous and subject to special rates. So in the Girard Fire & Marine Ins. Co. v. Stephenson, the question was, on the increase of the risk, by the putting of a stove in a carpenter shop. In the case in hand, had the policy permitted carbon oil to be kept upon the insured premises, a presumption would necessarily arise that it was to be kept there for some use, and it might be left to the jury to say for what use. If the question were whether this kind of oil was an article of merchandise ordinarily included in the stock of a country store, or if it were only an inquiry as to the increase of risk, it might well be referred to the jury. But it is nothing of the kind; it is an express stipulation that petroleum or its products shall not be kept upon the premises, and if it be so kept the policy is void. It matters not that it was part of a customary stock of goods, for by express contract it was excluded. The same reasoning applies to the fact of the knowledge of the company’s agent that carbon oil was kept on the pro
That preliminary proof of loss may be waived under circumstances similar to those in this case, we have but recently decided in the case of the Humboldt Fire Ins. Co. v. Kroegher (argued at Pittsburgh October 13th). And see, also, the case of the Franklin Fire Ins. Co. v. Updegraff, 7 Wright 350.
The judgment is reversed, and a venire facias de novo is awarded.