Bentley v. Lumbermen's Insurance , 191 Pa. 276 ( 1899 )

Opinion by

Mb. Justice Gbeen,

On the trial of this case it was fully established by the only testimony that was given on the subject, and not at all contradicted, that the benzine taken on the premises was procured only for the purpose of cleansing and protecting the carpets and furniture in the house. The quantity purchased was ten gallons, in two five gallon cans, one of which was placed in an outside kitchen and the other was taken into the parlor and from it the liquid was poured into a small watering pot, and was thus used to sprinkle over the carpet and furniture. The benzine was purchased only an hour or so before it was used, and the can that was taken into the parlor for use was removed from that place immediately after it was used. The contents of only one can were used. The explosion occurred soon after the sprinkling was finished, and the fire resulted from the explosion. The court below instructed the jury there could be no recovery for the injury done by the explosion, but that there might be a recovery for the loss resulting from the fire, unless the plaintiff was guilty of gross carelessness in using the benzine. The defendant contends that the court should have directed a verdict for the defendant because of a provision in the policy in the following words: “If the risk of the building insured shall afterwards be increased by any means whatever within the control of the assured; or if said building shall afterwards be occupied in any way so as to increase the risk, and notice thereof be not given to the company and such increased risk be allowed and endorsed on this policy or otherwise acknowledged in writing by the company, said policy shall be void during the continuance of said increased risk.” It is very clear that the property was not occupied so as to increase the risk under the facts in evidence. There was no occupancy of the property for a purpose increasing the risk, but only a temporary use of an article which it is claimed increased the risk by the manner of its use. The words, “ If the risk of the building insured shall afterwards be increased by any means whatever, within the control of the assured,” literally import a risk in the structure or character of the building, and as there is nothing of that kind to be found in the testimony those words become inapplicable to the present contention. In actual fact the basis of liability is only to be found in the circumstance that benzine was used in the building for the purpose of protecting the carpets and furniture. The question is then presented whether in such circumstances as are developed by the testimony the right of recovery for loss by fire was forfeited. On this subject the following considerations and authorities seem to be pertinent and controlling. While it may be conceded that benzine was a hazardous article to use in the way that it was used by the plaintiff, such user of such an article was not specifically prohibited by the policy, and therefore the case does not present the aspect of the absolute breach of an express condition. To illustrate more closely, if the policy had expressly provided that the bringing of benzine upon the premises for any purpose, or in any manner, should avoid the policy, there would have been an apparent breach of a positive condition, and the plaintiff would probably have been debarred from a recovery. But the policy did not contain any such condition. It contained only a general condition that the risk of the budding should not be increased. Conceding for the moment that the action of the plaintiff did operate to increase the risk of the building, the authorities establish that an increase of the risk arising in such a manner does not avoid the policy. Thus in the case of Dobson v. Sotheby, 1 Mood. & Malk. 90, where it was stipulated in the policy that “ no fire was kept and no hazardous goods were deposited on the premises,” and the loss had happened in conse■quence of making a fire thereon, and burning a tar barrel for the purpose of repairs, Lord Tenterden said: “ I think that the condition must be understood as forbidding only the habitual use of fire, or the ordinary deposit of hazardous goods, not their occasional introduction, as in this case for a temporary purpose connected with the occupation of the premises.” This case was cited with approbation in the opinion of this Court in the case of Farmers’ and Mechanics’ Insurance Co. v. Simmons, 30 Pa. 299. In Citizens’ Ins. Co. v. McLaughlin, 53 Pa. 485, the syllabus is as follows: A policy of insurance on a patent leather manufactory allowed keeping benzole in no place but in a shed detached from the building; the insured in conducting their business used benzole and carried it as needed into the factory in an open can. Held not to be a breach of the conditions of the insurance. Benzole being ordinarily used in such manufacture, the presumption was that it was intended that it might be used as it is ordinarily used in similar factories. In Mears v. Humboldt Ins. Co., 92 Pa. 15, a policy of insurance contained a condition “ that if the assured shall keep or have in any place on the insured premises where this policy may apply, petroleum, naphtha, benzine, benzole, gasoline, benzine varnish, or any product, in whole or in part of either .... or keep, have or use camphene, spirit gas or any burning fluid or chemical oil without written permission in this policy, then and in eveiy such case this policy shall be void.” With proper precautions the assured took and used benzine on the premises insured for the purpose of cleaning machinery. Held that the words “ keep or have” were intended to prevent the permanent and habitual storage of the prohibited articles, and taking them on the premises for the purpose of cleaning the machinery was not embraced within the meaning of these words.

It will be observed that in this case the policy expressly prohibited, under penalty of forfeiture, the mere “having” or “keeping” benzine on the premises, or the use of any burning fluid of any kind. In the course of the opinion Paxson, J., said: “The words ‘keep or'have,’ as applied to the articles first enumerated, evidently were intended to prevent a storage of the prohibited articles upon the premises, either permanently or habitually. While the words are used in the disjunctive, they are evidently synonymous, and signify to retain in possession. It would be straining a point to say that bringing a prohibited article upon the premises upon a single occasion, and for the sole purpose of cleaning machinery, was keeping or having it there within the meaning of the policy. The evidence shows, and it is not denied, that the can of benzine used for the purpose above stated was not kept on the insured premises during the period of its use, but was stored in a bonded warehouse, fifty or sixty feet distant. The witness, William Jacobs, who cleaned the machinery, got it from the warehouse from time to time as he needed it. The assured did not keep or have benzine upon the insured premises within any reasonable view of the meaning of the policy. . . . We are not disposed to give the word ‘ use ’ in this policy the narrow construction claimed for it. It must have a reasonable interpretation, such as was probably contemplated by the parties at the time the contract was entered into. Nearly every policy issued at the present time contains this provision or a similar one. What is intended to be prohibited is the habitual use of such articles, not their exceptional use upon some emergency. The strict rule claimed by the defendants would prevent the assured from painting his house or cleaning his furniture, as it would be difficult to do either without using some of the prohibited articles.”

All of the foregoing comments are applicable to the present case, with the exception in favor of the latter that in this policy the keeping or the using of benzine on the premises was not prohibited as it was in the former. If, therefore, where such keeping or use was specifically prohibited, an occasional use was not within the prohibition, how much more would that be so where the article was not prohibited at all. In this case the use of the benzine was of the most temporary and occasional character. It was only used to clean and protect the carpets and furniture. It had been used before with perfect impunity. The plaintiff was expressly told it was not danger-, ous to use it if there was no light or fire in the room. The decision in the last cited case seems to cover and control every aspect of this. Even if it did tend to increase the risk, a mere occasional use would not be an infringement of the policy, because that kind of use is permissible under a policy which prohibits any use or any keeping.

Other authorities are to the same effect. In Krug v. German Fire Ins. Co., 147 Pa. 272, we 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 a condition which prescribes the use of the premises.” In Lancaster Silver Plate Co. v. National Fire Ins. Co., 170 Pa. 151, a policy of fire insurance on a building used for silver plating, contained the stipulation “ this entire policy 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, gasoline .... or other explosive.” A barrel of gasoline was kept in an uninsured building about fifteen feet from the factory. When gasoline was needed it was drawn from a barrel through a spigot and carried into the factory where it was emptied into a kettle and used in carrying on the business of silver plating. Held, that it was proper to admit evidence that gasoline was necessary in carrying on the business of silver plating and that it was so used when the policy was issued and continued to be used up to the date of the fire. It was also proper to refuse to charge that if the plaintiffs used gasoline on the premises during the life of the policy, the policy became void, and there could be no recovery.

It is not necessary to continue the citations. Those above given fully dispose of the contentions in this ease. The learned court below gave the defendant an opportunity to defeat a recovery if it could establish that the plaintiff was guilty of gross negligence in using the benzine as she did, and directed the jury to render a verdict for the defendant if they should so find. It was its only chance of recovery, and it cannot complain that this opportunity was afforded it. The jury found for the plaintiff on this subject and thereby acquitted her of the charge. We do not see how any other verdict could have been rendered. The assignments of error are all dismissed.

Judgment affirmed.