58 Pa. 419 | Pa. | 1868
The opinion of the court was delivered, May 14th 1868, by
The subject insured was described in the policy as “ a four-story building, basement stone, balance frame, fifty by one hundred feet; two wing buildings each about thirty-four by fifty feet, three stories high; also, two-story stone kitchen attached with one wing by a frame covered building.” The application, which was agreed to make part of the policy, denominated the property as “ dwelling-house, Caledonia Spring Buildings,” and describes it, in other respects, substantially as it was described in the body of the policy. In neither is a word said respecting the occupancy of the building, or the uses to which it should be put. These are only to be inferred from its description. There is no representation that it was an occupied dwelling-house or building at the time when the insurance was effected, and no warranty that it should be occupied during the continuance of the risk. At least there is no such express representation or warranty. But the defendants below, now plaintiffs in error, contend that the
In Catlin v. The Springfield Ins. Co., 1 Sumn. 345, where it appeared that a house had been insured as a dwelling-house, but to be occupied as a tavern, Judge Story said: “ The doctrine had never, to his knowledge, been asserted, nor should he deem it maintainable that a policy against fire on the house of A. in Boston described as a dwelling-house would be void if the house should cease for a time to have a tenant. This in a case where a house had been described ‘to be occupied.’ ” In O’Niel v. The Buffalo Fire Insurance Co., 3 Comst. 122, in entering judgment the court said, assuming that there was a written application by the plaintiff describing the house as occupied by Goodhue, the description in the policy must be regarded as a warranty of the fact that he was the occupant at the date of the policy, and nothing more. The description imports nothing more. The defendants insist that the description warrants not only that he was the occupant at the date of the policy, but that he was to remain the occupant during the continuance of the risk. But the parties have not thought proper to express themselves to that effect. A warranty may be affirmative, as when the insured undertakes to perform some positive allegation, or promissory, as when the assured undertakes to perform some executory stipulation. Here was an affirmative stipulation that the house was then occupied by Goodhue, but not a promissory agreement that he should continue to occupy it.” This goes much further than we need go in the case in hand. Here there is neither affirmation nor promissory agreement respecting occupancy. The evidence offered to prove that the building was unoccupied for some time before the fire, was quite immaterial.
And so was that offered to prove negligence in the care and use of the building. Indeed the contrary was not urged in the argument before us. It was not alleged that the loss occurred in consequence of the plaintiff’s negligence, but if it had been it would not matter. A fire policy is a protection against fire caused by the assured’s own negligence, unless the negligence amounts to fraud. This is the doctrine of all the cases, and of the elementary writers.
The judgment is affirmed.