34 Pa. 96 | Pa. | 1859
The opinion of the court was delivered by
The real question in this case is, whether goods stolen or lost at a fire, are within a policy of insurance against fire. A fire policy has been held to cover losses, by the removal of the goods from a building actually on fire, although the goods may not have been burnt, but in fact were injured by water, or by the breakage in the act of saving them from fire. Either goods insured are to be left in a building on fire, to share its fate, or they are to be removed at the risk of the insurer, who stipulates, that in case of fire or of loss or damage thereby, it shall be the duty of the insured to use their best endeavors for saving and pre
The only method of saving goods in a burning store is by removal. If the insured were to lock up his store, and refuse admission to the fire department, and his stock on hand was burned up, it is clear that he would have no claim under his policy, he having deliberately violated a fundamental condition of it. His only alternative, then, is to employ the usual means to remove his goods to a place of safety, and if he does so carefully, prudently, and in good faith, he certainly should, not suffer losses necessarily attendant upon a removal at such a time, without being indemnified by the party for whose benefit it was effected.
In a large city, the removal of valuable goods, such as silks, ribbons, &c., in the night time, from a store actually on fire, is attended with certain inevitable consequences, such as damage by water, or handling, or being lost or stolen. With all our efforts at organization, we have not yet been able so thoroughly to occupy a building and all its approaches by the police and the fire departments, as to entirely exclude those common thieves who form a part of every crowd in a populous community. It is therefore one of the risks necessarily contemplated by the insurer, when he requires the insured to use his best endeavours for saving and preserving the property, that in the. process of so doing, they may be lost or stolen by dishonest persons.
Goods thus taken or stolen are clearly within the spirit of the policy and its conditions, and the 'only question is, do the decisions countenance such a construction of the instrument; always recollecting that actual destruction by fire is not necessary to sustain a claim under it.
Upon the argument, Case v. The Hartford Insurance Company, 13 Illinois 676, was cited, and is directly in point, as was the dictum of Napton, J., in Webb v. Insurance Company, 14 Mo. R. 1. Since then, the case of Til v. The Hamilton Fire Insurance Company, decided in June 1857, by the Superior Court of the city of New York, has been published in 1 Bosworth 367, in which the whole subject was most elaborately discussed by the late Chief Justice Duer, and the present Chief Justice. The full court (Hoeeman, J., dissenting) held, that a loss, by the stealing of goods at a fire, in a large and populous city, is recoverable as a loss occasioned by fire. We are disposed to adopt this construcción of the policy, as supported not only by analogy, but by authority, and upon this point therefore the judge below was right.
This, in fact, disposes of the whole case; for the court, after the admission of the written agreement to refer, which really covered losses by theft, and the declaration of the appraisers, were clearly right in admitting in evidence the report made by them in pursu
Judgment affirmed.
