Bentley v. Lumbermen's Insurance
Bentley v. Lumbermen's Insurance
Opinion of the Court
Opinion by
On the trial of this case it was fully established by the only
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,
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
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.
Reference
- Full Case Name
- Sophia R. Bentley v. Lumbermen's Insurance Company
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- 2 cases
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- Syllabus
- Insurance—Fire insurance—Covenants in policy—Use of benzine. In an action upon a policy of fire insurance, it appeared that the insured had purchased ten gallons of benzine 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 about an hour before it was used, and the can which was taken into the parlor was removed from that place immediately after it was used. The contents of one can only was used. An explosion occurred soon after the sprinkling was finished, and a fire resulted from the explosion. Benzine had been used before with perfect impunity, and the plaintiff had been informed that it was not dangerous to use it if there was no light or fire in the room. The policy required that notice should be given “ 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 after-wards be occupied in any way so as to increase the risk.” No notice was given to the company of the intended use of the benzine. Held, that the policy was not rendered void by the use of the benzine.