McCurdy v. Orient Insurance , 1906 Pa. Super. LEXIS 20 ( 1906 )

Opinion by

Henderson, J.,

The plaintiff’s policy contained the following clause: “ This entire policy, unless otherwise provided by agreement, endorsed hereon or added hereto, shall be void, 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, benzole, dynamite, ether, fireworks, gasoline, Greek fire, gun powder, exceeding twenty-five pounds in quantity, naphtha, nitro-glyeerine or other explosives.” The property insured was a dwelling house. The plaintiff’s tenant set up a gasoline stove in his kitchen for domestic use, and the next day the building was burned by a fire, which originated in the kitchen. It does not seem to be controverted that the fire was caused by the ignition of gasoline. The plaintiff had forbidden the tenant to use a gasoline stove, and did not know that there was one in the house. She contends, therefore, that she is not affected by the prohibitory condition in the policy. There can be no doubt that if the plaintiff had placed the stove there, herself, she could not recover. It was set up for household use, without any definite intention as to the duration of such use, and this is expressly forbidden in the policy. White v. Western Assurance Co., 3 Sadlers’ Pa. Supreme Ct. Cases 267; Diehl v. Insurance Co., 68 Pa. 443; Long v. Beeber, Receiver, 106 Pa. 466; Hutton v. Insurance Co., 191 Pa. 369, are some of the numerous authorities, giving effect to prohibitive conditions similar to that contained in the plaintiff’s policy.

The parties were competent to contract, and the provision is a reasonable one. No allegation of misrepresentation or deceit is set up and no legal reason is suggested for disregarding the-contract. It was the privilege of the company to decline to enter into it, unless the insured agreed to exclude such inflammable substances as gasoline from the premises, and the contract was made with the express understanding that this should be done. Unless, therefore, the plaintiff is relieved from responsibility, because she was ignorant of the act of her tenant, she is not entitled to recover. The question is not one of good faith on the part of the insured, but one of contract, of absolute obligation, under a mutually understood state of facts. As between the plaintiff and defendant, the possession of the tenant was the possession of the insured. The defendant had no power to determine who should occupy the premises, nor was it a matter of concern to it, whether the insured or a tenant resided therein. It does not relieve the insured, to show that the act, violative of the contract, was done without her knowledge, by a tenant or servant. In Diehl v. Ins. Co., 58 Pa. 448 and Long v. Beeber, 106 Pa. 446, the acts alleged to have worked the forfeiture of the policies, were committed by tenants, but this was held not to affect the right of the defendant, and not to be an excuse for an infringement of the covenants of the policy. To the same effect are Trustees of the Fire Association v. Williamson, 26 Pa. 196; McClure v. Watertown Insurance Co., 90 Pa. 277; Matson v. Insurance Co., 73 New York, 310; Kelly v. Insurance Co., 97 Mass. 284; Wetherell v. Insurance Co., 82 Mass. 276; Liverpool and London Insurance Co. v. Gunther, 116 U. S. 113 (6 Sup. Ct. Repr. 306); Wood on Fire Insurance, sec. 120.

The appellant contends that the words, “ kept, used or allowed,” in the policy, should be interpreted as referring to habitual use and Bentley v. Insurance Co., 191 Pa. 276, is cited as one of the latest utterances upon that subject. In that case, the presence of benzine on the premises was not expressly prohibited. The policy provided that if the risk of the building should afterwards be increased by any means whatever, within the control of the insured, or if the building should afterwards be occupied in any way so as to increase the risk without notice to the company, the policy should be void during the continuance of such increased risk. Benzine was sprinkled over the carpets and furniture for cleansing purposes. This was deemed by the court to be a use of the most temporary and occasional character, and not an increase of the risk within the terms of the policy. In Mears v. Humboldt Insurance Co., 92 Pa. 15, the property insured contained machinery, and benzine was used to clean this machinery. In view of the subject insured, this was held not to be keeping or having the prohibited article on the premises, within the meaning of the policy. So, too, in Krug v. Insurance Co., 147 Pa. 272, it was held that a single brief violation of the terms of the policy for the necessary work incidental to the preservation of the property insured, will not be considered a breach of the condition. In Lancaster Silver Plate Co. v. National Fire Insurance Co., 170 Pa. 151, the property insured was used in the business of silver plating, and evidence was held permissive that gasoline was necessary in carrying on the business of silver plating, and that it was used when the policy was issued. Such being the case, it was considered that the insurance was taken out with reference to the business carried on, and that it was not in the contemplation of the insurer, that the business should cease because its prosecution involved the use of material included among the prohibited articles. The parties were held to have contracted with the understanding that business was to be conducted with the materials then in use, which were necessary to its operation. The cases which are supposed to support the contention of the appellant, are all distinguishable from the one now under consideration. They discriminate between the temporary or casual, and the continued or habitual keeping or use; between a keeping or use, necessarily involved in the prosecution of the business, and therefore in contemplation by the contracting parties, and the keeping or use not so involved. Where the use is so transient and incidental as not to have, in any sense, the character of continuity, the terms of the policy are said not to be violated. The appellant’s case involves a different state of facts. A positive condition of the policy forbade the use of gasoline on the premises ; notwithstanding this prohibition, a gasoline stove was placed in the kitchen for domestic use. It was there without a definite limitation of the time during which it would be used. It was not intended by the plaintiff or the defendant that it should be used in connection with the occupancy of the premises. The use cannot be said to have been temporary in the sense in which that term is employed in the adjudicated cases. A transient use is one which must be brief in the nature of things. The use in this case might have continued, so far as is disclosed by evidence, until the end of the tenant’s term. Testimony was introduced to show that the gasoline was used because of a coal strike, which rendered it difficult to secure other fuel. The evidence falls short, however, of showing an inability to secure other fuel, nor are we willing to concede that a positive condition of the policy might be persistently violated for that reason.

The judgment is affirmed.