205 Pa. 159 | Pa. | 1903
Opinion by
The policy issued by defendant to plaintiffs on which this suit was brought, is dated January 4, 1900, and indemnifies plaintiffs in sum of $6,000 for one year against loss by fire on building No. 123 South 11th street in Philadelphia. It was a renewal of a one-year policy on same building issued January 4, 1899. After the first policy was issued, in July, 1899, plaintiffs let three of the floors to the “ Thomas H. McCollin Company,” a company engaged in the business of dealing in photographic supplies, and that company continued as tenants down to March 22, 1900, at which date there was an explosion, immediately followed by a fire, which destroyed the building. Charles Warren, who was an employee of the McCollin Company, and mixed explosives for that company, was on the fifth floor at work at the time of the explosion and was kiEed. Among other arti
The insurance company refused to pay the loss, on the ground that the conditions quoted had been violated, and thereupon this suit was brought. At the trial but few other material facts appeared than those already stated. The defendant requested the court to charge the jury in its second and third written points as follows :
“ If the jury believe that an explosive was manufactured on the premises in question at the time of the explosion, this was contrary to the contract of insurance and avoided the policy, and there can be no recovery thereon. Answer: For answer to that point I refer you to my general charge.”
“ Under all the evidence in the case the verdict of the jury must be for defendant. Answer: That point I refuse.”
Although the learned judge of the court below left it as a question of fact for the jury to find whether the McCollin Company was at the time manufacturing the flash light powder, the evidence that it was, was practically undisputed, and he says: “It would seem that there could be no question” about it; he really might very properly have instructed them, that the fact was established. So we shall treat it as a fact, the same as if found by the jury. The court’s reference to its general charge on the subject embraced in the second point is thus stated:
*162 “ If you find that the ordinary conduct of the business in which the Thomas H. McCollin Company was engaged at the time the risk was accepted by the insurance company involved the manufacture of flash light powder, and if on the first point under my instructions you find in favor of the plaintiff, then your verdict should be for the plaintiff.”
“ If the ordinary course of the business, however, was that it involved dealing in flash light powder and did not involve its manufacture, then I instruct you that an explosive was kept, used, or allowed on the premises contrary to the provisions of the policy, and that in such case your verdict should be for the defendant.”
This, although not a peremptory negative or affirmative, is a very clear answer, fully responsive to the points; there was a verdict for plaintiffs and defendant appeals and complains of the answers to the two points as error. Counsel for appellees here, rely on Citizens Ins. Co. v. McLaughlin, 53 Pa. 485, and Lancaster Silver Plate Co. v. Fire Ins. Co., 170 Pa. 151, for the law vindicating this instruction. We think there is a clear distinction in the facts between those cases and this. In both cases cited, one a leather factory, the other a silver plate factory, the prohibited articles, benzine and gasoline, were in constant use in the manufacture of the product of the factories and absolutely necessary in small quantities to carrying on the business. We held that if the use was a necessary one in carrying on the business, it must be presumed that the intent of the parties was to insure the subject of the contract as it then existed, and as it would continue to be during the life of the policy, notwithstanding the printed condition. In this case, as the learned judge said to the jury, there was no “ direct evidence” that the insurance company knew that the McCollin Company was manufacturing its own flash light powder on the premises when the policy was issued. ' Under the evidence it might fairly be presumed that the photograph supply company dealt in that article and kept it in small quantities for sale on the premises. But as there is no presumption from the nature of the business and the subject of the contract, that the insurance company knew it was also manufactured on the premises, the burden was on plaintiffs to establish by satisfactory evidence that the company actually did know. It might be presu med to know the ordinary methods
Was then the building at the date of the explosion and fire occupied “ for a purpose more hazardous ” than at the date of the policy ? As before noticed from the subject of the contract, it would be fairly presumed that the insurance company knew or ought to have known that a dealer in photographic supplies kept on the premises and sold small quantities of flash light powder, but there is no presumption and no evidence that the insurer knew he manufactured it there. Then did the use of the premises for manufacture increase the hazard, within the typewritten condition of the policy ? Flash light powder is composed of quite a number of chemical materials, which when compounded in certain proportions, it is testified by chemists, become a high explosive. It scarcely needed further proof, that the bringing together in one room of a number of materials which separately were comparatively harmless, yet together made a high explosive greatly increasing the peril of fire from explosion, though further evideuce on that point by manufacturers and others was given. One manufacturer, Buchanan, testified that he had stopped manufacturing it altogether because there were too many coroner’s juries to keep it up in his establishment. There was other testimony to the same effect and there was none to the contrary. The case was well and