Heron v. Phoenix Mutual Fire Insurance, 36 A. 740

Heron v. Phoenix Mutual Fire Insurance

36 A. 740

Pa.

1897

Check Treatment

Opinion by

Mr. Chief Justice Sterrett,

This action of assumpsit, brought to recover the value of certain household goods, etc., insured by defendant company and destroyed by fire on July 3,1895, involves the construction of certain provisions of the policy in suit.

There is no controversy as to any of the material facts. For the purpose of celebrating the 4th of July of that year, plaintiff bought a lot of assorted fireworks which were delivered at his residеnce on the morning of the 3d, and were shortly ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍afterwards, with his knowledge and approbation, placed in the parlor for use on the following evening. In some unexplained way they took fire on the' afternoon of the same day, and caused the damages for which this suit was brought.

The defense interposed by the insurance company was that *260placing the fireworks in plaintiff’s house, with his knowledge and consent, and permitting them to remain there, was a violation of the following clausе of the policy, and rendered the latter void: “This entire policy, unless otherwise provided by agreеment endorsed thereon or added thereto, shall be void .... if the hazard be increased by any means within thе control or knowledge of the insured, .... or if (any usage or custom of trade or manufacture to the contrary notwithstanding) there be kept, used or allowed on the above described premises, benzine, bеnzole, dynamite, ether, fireworks, gasoline, greek fire, gunpowder exceeding twenty-five pounds in quantity, naphtha, nitroglycerine, or other explosives, phosphorus, or petroleum or any of its products of greater inflammability than kerosene oil of the United States standard (which last may be used for lights and kept for sale according to law, but in quantities not exceeding five barrels, provided it be drawn and lamps filled by dаylight or at a distance not less than ten feet from artificial light).”

The defendant’s contention as to the рroper construction of the above-quoted clause is clearly presented in its requests for charge recited in the first three specifications, respectively. Each of these requests were refused by the learned trial ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍judge, and, the jury was instructed to find for the plaintiff the amount of the loss he.“sustained by rеason of the fire.” The third request was that, “ under all the evidence in the case the verdict of the jury must be fоr the defendant.”

We have never gone to the length that other courts have in construing away exprеss provisions or stipulations as to forfeiture. While some hold that it is permissible to use the articles prоhibited by the general printed clause, provided they are such as naturally pertain to the stock of, goods or property described in the written part of the policy, this court has refused to go so fаr. In Birmingham Fire Ins. Co. v. Kroegher, 83 Pa. 66, where petroleum was kept for sale in a country store in violation of a printed clause very-similar to that above quoted, this court said: “ If the question were whether tins kind of oil was аn article of merchandise ordinarily ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍included in the stock of a country store, or if it were only an inquiry as tо 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 *261products shall not be kept on 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.” This case was followed in Lancaster Fire Ins. Co. v. Lenheim & Co., 89 Pa. 497, and must be accepted as the settled constructiоn of such conditions. In the first of these cases, however, —Birmingham Fire Ins. Co. v. Kroegher, supra — a qualificatiоn was suggested which has since been adopted, and which the learned trial judge in this case sought to cаrry to a length not warranted by any of our cases. It was there said by Mr. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Justice Gordon: “It is probable that this prоvision 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.” This suggested distinction, in principle, has since been adopted in Mears v. Humboldt Fire Ins. Co., 92 Pa. 15, Lancaster Silver Plate Co. v. National Fire Ins. Co., 170 Pa. 151, and Same v. Manchester Fire Assurance Co., 170 Pa. 166. In the latter, our Brother Dean, speaking for the court, said: “ If the fact were that thе use were 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.” A further and fuller discussion of this subject will be found in the next preceding casе, — Lancaster Silver Plate Co. v National Fire Ins. Co., supra. These cases rest on the necessary and contemplated use of the property, and cannot be supported on any other ground. They furnish no warrant for the advanced position taken by the plaintiff in this case. There is no ground for a presumption that the parties here contemplated even the temporary presence of fireworks in the insured building in the face of an express contract to the contrary.

If the policy had contained only the clause relating to increased “ hazard ” above quoted, the case should have gone to the jury, but the additional prohibitory clause made it incumbent ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍on the court to withdraw it from their consideration by affirmance of defendant’s third point. In view of the undisputed evidence in the case it was error not to do so.

Judgment reversed.