Appeal, No. 378 | Pa. | Jul 18, 1895
Opinion by
Plaintiffs, as partners, carried on the business of gold, silver and nickel plating in the city of Lancaster. On the 15th of April, 1893, the defendant issued to them a policy of insurance against fire in sum of $1,250 for the term of one year. The description of the property in the typewritten part of the policy read thus: “Lancaster Silver Plate Company, Lancaster, Pa., $1250, on their stock, finished and in process of finishing, their own or sold, but not removed, including all acids, solutions and materials for the same in their trade, as gold, silver and nickel platers, and manufacturers of silver plated and metal goods, all. contained in the three story brick tin roof building, occupied by the assured, situate rear of No. 2 West King Street, Lancaster. ”
In addition to this written or inserted description of the property, there were in the policy a number of printed conditions, among them this: “ This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be-void, if (any usage or custom of trade or manufacture to the contrary notwithstanding) there be kept, used or allowed on the above described premises. . . . gasoline.”
A barrel of gasoline was kept by the assured in a small outbuilding about fifteen feet distant from the main factory on another lot than that on which stood the main factory; this outbuilding was not insured; the gasoline, in small quantities, was used in the process of plating, principally for cleansing tools and molds; when used, it was carried and put in a kettle holding-from three to four gallons in the third story of the factory. On the night of September 7, 1893, the building, with its contents, was destroyed by fire; there was no gasoline in the kettle when the fire occurred, nor was the barrel in the outbuilding-disturbed ; so the fire was not caused by the gasoline; the undisputed testimony, however, was that the gasoline, in the quantity mentioned, was used in the factory almost daily for years before the policy was issued, and the same use, without change, continued until the fire. Plaintiffs’ loss was largely in excess of the sum insured.
The defendant refused to pay the loss, on the ground that by a violation of the printed condition as to the use of gasoline the policy was void. Plaintiffs brought suit; verdict and judgment being in their favor in the court below, defendant brings this appeal.
But as the words, “ acids, solutions and materials for the same in their trade,” did not expressly include gasoline, the plaintiffs, adduced evidence that this material was necessary to the process of finishing. A number of witnesses, experienced in the business of plating, testified that gasoline was absolutely necessary in the business, and was in ordinary use. The court then submitted the question to the jury thus: “We say to you, that if you find from the evidence, that this company, at the time this polic}' 'was issued., which we say covers these materials, was using this material, and continued to use it as it had been during the time that elapsed between the issuing of the policy and the fire, without making any change; and that it was necessary for its use in carrying on its business; . . . . then your verdict should be for the plaintiff.”
As we held in the case against the National Fire Ins. Co., already noticed, if the fact were that the use was a necessary one in conducting the business, then it must be presumed the intent of the parties was to insure the subject of the contract as it then was, and as it would continue to be during the life of the policy, notwithstanding the printed condition; and further, that the 'fact of the necessity of the use, for the purpose of establishing the intent of the contracting parties, could be proven by evidence dehors the instrument. It follows from the opinion
Judgment affirmed accordingly.