180 Pa. 257 | Pa. | 1897
Opinion by
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 residence 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
The defendant’s contention as to the proper 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 reason of the fire.” The third request was that, “ under all the evidence in the case the verdict of the jury must be for the defendant.”
We have never gone to the length that other courts have in construing away express provisions or stipulations as to forfeiture. While some hold that it is permissible to use the articles prohibited 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 far. 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 an article of merchandise ordinarily included in the stock of a country store, or if it were only an inquiry as to 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
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.