91 Pa. Super. 327 | Pa. Super. Ct. | 1927
Argued April 14, 1927.
The defense to the plaintiff's action as tried in the court below was two fold: (1) that the policy became void because the hazard was increased by means within the control of the insured; and (2) that the proof of loss contained a false statement as to the use of the premises at the time of the loss. When the property was insured, it was used by the plaintiff as an abattoir and cold storage plant. When the company transferred its business to a new building, it leased the premises to Harry Green "to be occupied for assembling wooden boxes and packing cases." The policy contained a provision that the insurer shall not be liable for loss or damage occurring while the hazard is increased by any means within the control of the insured. Evidence was offered in defense of the action to show that after the lessee went into possession a distillery was established on the premises; that the occupants manufactured a large quantity of alcohol or alcoholic liquor, and that the fire resulted from an explosion growing out of the distilling operation. There was also evidence to the effect that the president and secretary of the plaintiff company were seen going into and coming out of the leased premises frequently during the period of about a month in which the distilling operation was conducted. The proof of loss was sworn to by David *330
Isecovitz, secretary of the plaintiff company. He was at the premises at the time of the fire and had knowledge then of the existence of the distilling plant. The proof of loss was made several weeks after the fire and contained the statement that the destroyed property was "occupied as abattoir, cold storage and shed and for purposes incident thereto, and for other purposes not more hazardous." This statement, the defendant contended, was false and therefore in violation of that portion of the policy which provides that "this entire policy shall be void if the insured has concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss." The plaintiff denied knowledge on the part of its officers of the existence of the business actually carried on by the tenant, and the increase of hazard, if any, resulting therefrom. The court charged the jury that the plaintiff was entitled to recover unless the defendant satisfied the jury by the weight of evidence that its hazard was increased by means within the control of the insured "or that there was a false statement or swearing in this proof of loss," but that if they should find that the hazard was increased by any means under the control of the insured "or that Mr. Isecovitz made a false or fraudulent oath in the proof of loss" then the plaintiff was not entitled to recover. The appellant's principal contention is that the charge with respect to a false statement in the proof of loss was not in accordance with adjudicated cases on the subject, and was misleading in that it did not contain the instruction that to avoid the policy the jury must find that the statement or representation was not only false, but that it was wilfully and fraudulently made by the insured. It is conceded by the trial judge in the opinion filed on *331
the motion for a new trial that the charge was defective in this respect, and this admission was necessarily made in view of the judgment in Allegro v. Rural Valley Mutual Fire Ins. Co.,
The instruction with reference to the increased hazard resulting from the change of occupancy was in harmony with the terms of the contract. There was a denial of knowledge by the plaintiff and there was evidence tending to show knowledge of some of the officers of the plaintiff of the character of the business carried on within the leased premises. It was for the jury to say whether the evidence for the defendant, showing the presence of these officers in the plant frequently during the tenancy under the lease, warranted the conclusion that they had knowledge of the business then carried on. The nature of that business seems to have been understood in the neighborhood by persons not interested in the property, and it is not a violent inference that the officers of the company when on the premises had an opportunity to learn what their tenant was doing. It may not have been necessary, as contended by the appellant's counsel, that the plaintiff should have sought for information on the subject, but if it came to the company through its officers by any means, it is chargeable with the effect of such knowledge. The property was leased for the assembling of wooden boxes and packing cases, and there was an implied covenant that it was to be used for that purpose. The lease gave the lessor the election to terminate the lease and reenter the demised premises "without previous notice or demand," in case the covenants of the lessee were not fully kept and performed, and if officers of the lessor had knowledge of the character of the business carried on and failed to exercise the authority of the lease because of a use of the premises radically different from and more hazardous than that *333 contemplated by the lessor, notice of such fact is attributable to the plaintiff, and an action could not be sustained on the policy. The question of knowledge by the plaintiff's officers is one for the jury under proper instructions from the court. The objection that a landlord has no authority to enter the leased premises except for the collection of the rent is not applicable, if, as shown by the defendant's evidence, the landlord's officers were frequently there. When we consider the magnitude and character of the business which the tenant engaged in, it cannot be declared as a matter of law that there was no question for the jury on the propositions submitted by the court.
The judgment is reversed with a venire facias de novo.