Long v. Beeber , 1884 Pa. LEXIS 218 ( 1884 )

Mr. Justice Gordon

delivered the opinion of the court,

It is a very plain proposition, and one that ordinarily will not be disputed, that where a man makes an agreement with another, he should himself comply with its terms and conditions if he would insist upon a compliance on part of him with whom he has contracted. Following a rule of this kind, it was held, in the case of McClure v. The Watertown Fire Insurance Company, 9 Nor., 277, that when a condition in a, policy is unambiguous, the insured cannot avoid a compliance with its terms, by showing an honest, though unsuccessful, effort to comply therewith. In the case in hand there can be no doubt that the condition, upon the breach of which the defence was rested, was both reasonable and unambiguous. The company, for a fixed price, insured the building as it was at the date of the policy; it took upon itself that hazard and none other, and to avoid all dispute as to what it did insure, the condition was introduced that if the risk was increased by the erection or occupation of neighboring buildings, or by any means whatever, without the assent of the company, the policy should be void, and, subject to this condition, the plaintiff accepted this policy. There is no doubt about the just and binding character of this contract, and if the insured did, in fact, without the assent of the insurer, either by himself or tenant, do anything to increase the risk, the contract was violated, and he must bear the consequences. Whether the risk of fire was increased by the temporary use of the steam thresher at the barn, was a question properly submitted to the jury, and of that submission there can be justly no complaint. The argument, however, is that, with the use and empio.yment of this steam engine, the plaintiff had nothing to do, but that it was hired and used, without his knowledge and assent, by Solomon Tyce, his tenant. JBut we do not understand that the indiscretion of Long’s tenant was one of the risks which the defendant took upon itself, and if not, we cannot see how it can he made liable therefor. In this particular the case is very like that of Diehl v. Adams County Mutual Insurance Co., 8 P. F. S., 443. In that case the tenant, without the acquiescence or assent of his landlord, had increased the risk of the insured premises by the erection of steam works on a public alley adjacent thereto; held that the fact that the erection was by the tenant, was no excuse for an infringement of the covenants in the policy; that the possession of • the tenant was the possession of the lessor; that he continued to be the insured party, and that the covenants he entered into when his property was insured continued whether he occupied it personally or by his tenant.

This ease is so nearly like the one in hand that the one may be regarded as ruling the other. The principal difference is, that in the one the erection was permanent, but was not the cause of the fire which destroyed the insured building; in the other the erection was temporary, but caused the loss. Now, let it be that this temporary use only suspended the policy during the time the thresher was in operation, yet, as the loss occurred during that time, the effect is the same as though the objectionable structure had been permanent. Nor does the' landlord’s knowledge of the act of the tenant form a material element of the case; as we have seen from the case above cited, the violation by the tenant is legally a violation by the lessor. Furthermore, the condition is not limited to an act personal or permissive on part of the insured, but the provision is that the premises shall not be occupied or used so as to increase the risk, and it therefore became Long’s duty to see that they were not so used.

The judgment is affirmed.