30 A.2d 360 | Pa. Super. Ct. | 1942
Argued October 26, 1942. Actions of assumpsit. Before SMITH, P.J.
Verdicts and judgments for plaintiffs. Defendant in each case appealed. Plaintiffs' dwelling house in DuBois together with their household furniture was insured against fire loss by defendant Mutual Company. The policy of defendant Ben Franklin Company covered the furniture alone. In the early evening of August 21, 1940, a fire of unknown origin occurred in the cellar of the house, accompanied by an explosion. There was little damage from fire; more serious damage resulted from the force of the explosion. The cases were tried together. The jury found that plaintiffs' total loss was $1,000. The proportionate amounts assessed against the two defendants in the judgments entered by the lower court are not disputed. Each defendant in these appeals, however, contends that there is no liability under the terms of its insurance contract with the plaintiffs.
Plaintiffs' house was a two story frame building with a cellar and an attic. They, with their three sons, had occupied it for many years as a dwelling. The sons conducted a furniture business in DuBois at another location. On occasion, plaintiff Minta Harbridge cleaned rugs for others on the floor of the attic. In the process she used a mechanical device consisting of a rotary brush operated by an electric motor. Soap *280 and water were the only cleaning materials used. She made a charge for this service. In the cellar there was a wood turning lathe operated by a small electric motor. There is no evidence that this lathe was used in connection with the sons' furniture business or otherwise for profit. All of the testimony is that its occasional use was as a hobby.
The use of these two electrically operated devices did not necessarily void the policies under specific provisions which limited the use of electricity on the premises.1 That question became one largely of fact, as to the character and extent of the use, and was properly submitted to the jury. We agree with the lower court that "the mere . . . . . . use of such appliances and tools, even though occasionally for gain on the part of some member of the household does not change the general and comprehensive use of the building." A housewife who uses an electrically driven sewing machine or a washing machine for incidental and occasional profit does not affect the character of the occupancy of the house as a dwelling. The uses here complained of, are similar. The Supreme Court has stated the applicable rule thus: "The determinative factor is the general and comprehensive use of the structure. While there may be another incidental use not inconsistent with occupancy *281
as a dwelling, the situation is otherwise where a large part of the building is devoted to the systematic operation of a commercial enterprise": Smith v. Penn Twp. M. Fire Assn.,
These uses of electricity, in the light of the verdict, did not suspend the obligations of these defendants by increasing the hazard.3 Minta Harbridge was 69 years old; it is a fair inference that the rug cleaning business which she conducted in her attic was not extensive. Moreover, there is no evidence on either side, except by inference, that a single rug was cleaned on the premises during the terms of the policies. The burden of *282
defeating a claim because of increased hazard is on the insurer. 8 Couch on Insurance, § 2217. The defense is affirmative. Bowersv. Great Eastern C. Co.,
A more serious question is whether the explosion which caused most of the damage resulted in sequence from a `hostile' fire, imposing liability on defendants (5 Couch on Insurance, § 1197), or whether the explosion caused the fire, in which event defendants would be liable for the ensuing fire loss only. Both policies contain the provision that the company "shall not be liable for loss or damage occurring . . . . . . by explosion . . . . . . unless fire ensue, and in that event for loss or damage by fire only."
The fire occurred in August and the furnace in the cellar was not in operation. There was no `friendly' fire in the cellar. There was a hot water heater with a gas flame and a motor operating a refrigerator in a laundry located outside the cellar walls and a heavy wooden door between the laundry and the cellar was closed. Three members of the household were in the house but none of them smelled smoke or had notice of a fire until after the explosion. One of the sons ran from the kitchen into the cellar through the doorway leading from the laundry and arrived there in less than one-half minute after the explosion. He found the cellar a mass of flames. Papers were blazing in several places. An upholstered chair under the stairway leading to the dining room was burning as well as the wooden stairway above it. He was joined almost immediately *283 by a workman from a neighboring lot and the two tried to stamp out the fire. Shortly thereafter someone brought in a garden hose and the fire was put out. The fire was confined to the cellar; there was no evidence of fire in the laundry. Parts of the wooden stairway were admitted in evidence at the trial and from their charred condition, (stated to be one-half inch deep) plaintiffs, at the trial, contended that they must have been burning longer than the five minutes consumed in extinguishing the fire following the explosion.
The burden was on plaintiffs to prove that a `hostile' fire caused the explosion. Tannenbaum v. Fire Ins. Companies,
The verdict of the jury based upon evidence sufficient for a decision of the question was something more than a mere guess. There is evidence that the explosion was not caused by a `friendly' fire. The exhibits of charred wood were competent evidence supporting the inference, favorable to plaintiffs, that the fire preceded the explosion. Apfelbaum Neff v. Ins. Co. ofN.A.,
Judgments affirmed.
The following is the only provision in the Mutual Company policy on the subject: "Permission is hereby granted for such use of the premises as is usual and incidental to the occupancy herein described, and to keep and use all such appliances, devices, articles and materials, including such materials as are prohibited by the printed conditions of this policy, in such quantities as are usual and incidental to such occupancy."