Mears v. Humboldt Ins. Co.

• Decision Date: 17 November 1879
• Citation: 92 Pa. 15
• Parties: Mears <I>versus</I> Humboldt Ins. Co.
• Court: Pennsylvania Supreme Court

Page 15

92 Pa. 15

Mears versus Humboldt Ins. Co.

Supreme Court of Pennsylvania.

November 3, 1879.

November 17, 1879.

November 3d 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON and TRUNKEY, JJ. STERRETT and GREEN, JJ., absent

Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 204.

COPYRIGHT MATERIAL OMITTED

Weir & Gibson and J. Dunbar, for plaintiff in error.—It will be observed that this condition of the policy does not prohibit the use of benzine on the insured property. It only forbids the assured to keep or have it there. The words keep and have are employed in the disjunctive. They are synonymous terms in the connection used in this instance. They signify, to hold, to retain one's possession or power. They were evidently intended to prevent the assured from the permanent and habitual holding and retaining the forbidden article in his possession, on the property insured, as a place of storage, and were not intended to prohibit him from having it there in such quantity as might be necessary to clean the machinery and keep it in good order. The contract does not forbid its use on the machinery or other parts of the property insured. In the absence of a stipulation against this, the assured had the undoubted right to use it for this or any other purpose. He could not exercise this right without the presence of the article. To keep or have it there was a necessary incident to the right to use it. Its presence for this purpose was not keeping or having it on the insured premises, within the meaning of the condition of the policy.

It will be observed also that the last or concluding paragraph of the condition does not prohibit the assured from keeping, having or using, benzine and carbon oil by name. The language is, that he shall not keep, have or use camphene, spirit gas, or any burning fluid, or chemical oils.

These words do not embrace benzine and carbon oil, and cannot be invoked as a defence, unless upon the theory that they are articles which are covered by the words burning fluid. But these words are to be read with reference to the connection in which they are used, and must be interpreted in view of this to mean burning fluid, such as camphene, spirit gas, and chemical oils.

To reach the true intention of the parties, the words of this part of the contract are to be read in a restricted sense. That is the prohibition of the enumerated articles was directed against their permanent and habitual use, and not against their temporary and occasional use, for the purpose of cleaning, repairing and keeping the insured property in good order and condition.

M. W. Acheson and S. C. Schoyer, for defendant in error.—It is not to be expected that a distillery will be used as a place for the storage of benzine or carbon oil, or that they will be kept there as articles of merchandise. Therefore, if the interpretation which the court below gave to the condition of the policy is rejected, it is difficult to perceive what effect can be given to the prohibition: Birmingham Fire Ins. Co. v. Kroegher, 2 Norris 64; McClure v. Watertown Fire Ins. Co., 9 Id. 277; Glen v. Lewis, 8 Exch. 607; 20 E. L. & E. 364.

The stipulations contained in the condition of the policy in the present case are "promissory warranties," and must be "exactly and literally fulfilled," otherwise, the policy is avoided by its express terms. 1 Arnold's Ins. 577; May on Ins., sect. 156; Glendale Woollen Co. v. Protection Ins. Co., 21 Conn. 19; Wilson v. Hamden Fire Ins. Co., 4 R. I. 159.

Mr. Justice PAXSON delivered the opinion of the court, November 17th 1879.

The first assignment of error relates to the use of benzine upon the insured premises. It was contended that the court erred in instructing the jury in answer to the defendant's second point, that if Mears, the assured, purchased from eight to ten gallons of benzine, and used nearly the whole of it in cleaning the engine, boilers and machinery of the distillery, and such use extended over a period of about two weeks, there was a violation of one of the conditions of the policy in suit and avoids the same.

The condition in the policy referred to is as follows: "Or if the assured shall keep or have, in any place on the insured premises where this policy may apply, petroleum, naptha, benzine, benzole gasoline, benzine-varnish, or any product in whole or in part of either; or gunpowder, fireworks, nitro-glycerine, phosphorus, saltpetre, nitrate of soda; or keep, have or use camphene, spirit gas or any burning fluid or chemical oils, without written permission in this policy, then and in every such case, this policy shall be void."

It will be observed that in the first portion of this condition the provision is that the assured shall not "keep or have" any of the enumerated articles upon the insured premises, while in the latter portion, the "use" of certain other articles is prohibited, in addition to the restriction contained in the first.

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...