McClure v. Mutual Fire Ins.
McClure v. Mutual Fire Ins.
Opinion of the Court
Opinion by
This suit was brought on a fire insurance policy to recover for the total loss of a frame store building, dwelling house and attachments; and the defenses are: first, that the hazard of the risk was increased by changing the business conducted in the insured building from a general country store to a broom factory; and, second, that the keeping of gasoline, illuminating oil and gunpowder on the premises avoided the policy. The case was submitted to the jury and resulted in a verdict for the plaintiff. The jury were specifically instructed that
The controlling question raised by this appeal is whether the policy was rendered void because some prohibited articles enumerated therein were kept on the premises during the life of the insurance contract. In order to properly understand the question involved it is necessary to briefly state some of the material facts. The policy was taken out in 1893 and was in full force and'effect at the time of the fire in 1911, unless avoided by what occurred in the meantime. Appellant paid the annual assessments Upon the premium endorsed on the policy of insurance and renewal receipts were issued to her by the company year by year from the time the insurance contract was entered into until the fire occurred. In other words the insured paid her premiums as stipulated in the policy for a period of eighteen years for the very purpose of protecting her property against loss by fire, and it now remains to be determined whether all this shall go for naught because her tenant kept on the premises some of the prohibited articles enumerated in the policy. In this connection it should be observed that the tenant conducted a general store in the building from 1893 until 1908 or 1909 at which time the store business was closed out and a small broom factory started. It was during the time the general store business was conducted in the building that gasoline, illuminating oil and gunpowder in any considerable quantities were kept on the premises. It is also an established fact that all of these articles were a part of the general stock of merchandise kept for sale in a country store, and that the tenant in the case at bar did keep these prohibited articles as merchandise for sale, to his cus
The learned counsel for appellee rely on Fire Association v. Williamson, 26 Pa. 196; Lancaster Fire Ins. Co. v. Lenheim, 89 Pa. 497; Birmingham Fire Ins. Co. v. Kroegher, 83 Pa. 64; and Heron v. Ins. Co., 180 Pa. 257, to support their contention that the policy in the present case was absolutely forfeited and could not be revived without the consent of the insurer. If these cases be considered without reference to the particular facts upon which they were decided the argument that they are controlling here would have great weight. But in none of these cases was the question we are now consid
The general rule is that the written portions of an insurance policy must be taken as being more immediately expressive of the intention of the parties, and must prevail over the printed portion, if there is any repugnancy or conflict betAveen them. While the rule is everywhere recognized there is conflict of authority as to whether it is applicable to the case of prohibited articles. We think the better opinion is that the rule applies as well to prohibited articles as to other conditions of the policy. The Aveight of authority is to the effect that the use of an article prohibited by the printed clauses of the policy will not avoid it, if the prohibited article is a customary component part of the goods insured, or is in customary use in carrying on the trade or business conducted in the insured building. Where there is an inconsistency between the written and printed portions of a policy, the former must control, and this means that if there are printed prohibitions against keeping certain articles on the insured premises, the policy Avill not be avoided by a violation of these provisions if the prohibited articles
Another matter must be adverted to. After the store business had been closed out in the case at bar and a broom factory started, the tenant installed a small gasoline engine in an outer part of the building to be used in connection with his business. It was necessary to keep on hand a small quantity of gasoline as fuel for the engine. It is therefore argued that the keeping of gasoline on the premises for the purpose stated worked a forfeiture of the policy. In answer it may be said that the defendant insurance company failed to prove that there was any gasoline in the tank at the time of the fire. The tenant admitted that some time prior to the fire he had kept about two gallons of gasoline in a tank on the premises but that the factory was shut down several weeks before the fire occurred and that he could not say whether there was any gasoline stored there at that time. The proofs therefore failed to show that there was any gasoline on the premises. But it is conceded that even if gasoline had been stored there at the time it had nothing to do with the fire which originated in a room on the
It is our conclusion therefore that the policy had not been rendered absolutely void, but that it was in full force and effect at the time of the fire, and that the defendant insurance company is liable according to the terms of the policy for such loss as resulted.
Judgment reversed and is here entered for plaintiff on the verdict.
Reference
- Full Case Name
- McClure v. Mutual Fire Ins. Co. of Chester Co.
- Cited By
- 18 cases
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- Published
- Syllabus
- Insurance — Fire insurance — Prohibited articles — Suspension of policy — Revival—Written and printed clauses — Articles incident to business — Increase of hazard — Case for jury. 1. When an article prohibited in a policy of fire insurance has been kept or used on the insured premises but the insurer has not declared cancellation or forfeiture of the policy on that account, and the keeping or use of the article has been discontinued prior to the happening of a fire, the policy is not rendered absolutely void, but only suspended during the time the prohibited articles are kept on the premises and is revived by the discontinuance of the prohibited use and the payment of premiums and the issuance of renewal receipts after that time. 2. The general rule that written portions of an insurance policy must be taken as being more immediately expressive of the intention of the policy and must prevail over the printed portions if there is any repugnancy or conflict between them, is applicable as well to prohibited articles as to other conditions of the policy, and the use of an article prohibited by the printed clause of a policy of fire insurance will not avoid it if the prohibited article is a customary component part of the goods insured or is in customary use in carrying on the trade or business conducted in the insured building. 3. In such a case the policy is not avoided by the fact that the insured had during the life of the policy kept gasoline, illuminating oil and gunpowder on the premises, in violation of the policy, where it also appeared that such articles had not been so kept for at least two years prior to the fire, and that the policy had been renewed in the meantime, and the premiums paid. 4. In such a case where the policy contains a printed clause prohibiting the keeping of gasoline on the insured premises, but it appears in the written provisions of the policy that the building is to be used as a general country store, in the conduct of which business such an article ordinarily forms a part of the general stock, the violation of the printed provision will not avoid the policy; and, in such a ease, where the nature of the business conducted on the insured premises is changed from that of a country store to a broom factory, the fact that after such change a small quantity of gasoline was kept in a tank on the premises to be used in conducting the business is not sufficient to avoid the policy, where it appears that the factory had been shut down two weeks before the fire occurred and there was no proof that at such time there was any gasoline in the tank, or that it had any connection with the fire, and where premiums had been paid and revival receipts issued after the gasoline was stored for the use of the hroom factory. 5. Where in an action on an insurance policy which forbade .the increase of hazard by changing the character of the business conducted on the premises, it appeared that the original use of the building was changed from that of a general country store to a broom factory, the verdict of the jury in favor of the plaintiff is conclusive on the question as to whether such change was an increase of hazard.