Cramer v. Blooming Grove Mutual Fire Ins.

63 Pa. Super. 276, 1916 Pa. Super. LEXIS 151

• Court: Superior Court of Pennsylvania
• Decided: April 17, 1916
• Docket: Appeal, No. 28
• Status: Published

Opinion

Opinion by

Kephart, J.,

The plaintiff had his dwelling house insured by the defendant. Attached to the policy of insurance was a stipulation which read as follows: “The undersigned, in consideration of a policy of indemnity, against accidental loss to above named property, hereby agrees to be subject to and observe all the by-laws, rules and regulations of the company during membership; ......to keep all ashes in fire-proof vessels, in cellar or vault or at a safe distance from insured property, to use coal only for fuel when steam power is used; to use or allow no unprotected light in or about barn, stable or barnyard, to not smoke or allow the smoking of cigars or pipes therein or thereabout; ......that all the foregoing statements and answers are warranted to be true.” At the time of the fire, the plaintiff was operating a portable steam engine, using wood as a fuel, for the purpose of sawing wood. It was located between the house and the barn, about twenty-eight feet from the house or twenty feet from the porch. The fire was first noticed breaking through the roof of the house, and plaintiff states it was caused by a stovepipe running through the attic floor into the flue. Defendant contends that the use of wood as fuel to make steam was in violation of alleged warranty contained in the terms of this stipulation, and the policy of insurance was therefore void.

It will not be necessary for us to determine whether this stipulation is a warranty. Even if it were, the question would still be whether the facts as here presented come within the prohibition of the stipulation. It will be observed that this language relates to the thing insured and does not refer to matters temporarily used outside of and not in any manner connected with the thing insured. If the policy was intended to cover the conditions as here contended for, its language should be clear and explicit. In this case the building which was insured and destroyed was a dwelling house located on a farm. The prohibition was the use of any fuel, except coal, in generating steam in the property insured. If this prohibition referred to fuel used for the purpose of making steam outside of the building, it would extend to any part of the farm and would prohibit the use of an engine of this character at a point clearly not within any reasonable interpretation of the terms or intention of the policy of insurance. Nor can it be said to embrace the use of an engine reasonably close to the building, as the policy does not undertake to fix the distance; to have the effect of a warranty, as contended for, it lacks the essential element of clearness or definiteness in terms, and leaves the fact warranted obscure, as it is uncertain what point would be considered a reasonably safe distance. At best, even if it were a warranty, the prohibition could only embrace such facts as in the judgment of the jury was reasonably in contemplation of the parties in view of the nature of the matter then under consideration. For this reason the third point was properly denied. The clause referred to must be limited and confined to the building insured, or anything attached to it in such manner that it might be said to be a part of it, and as thus construed it would not include an engine used temporarily on the premises, located near the building.

As affecting the insured’s right to recover, the nearness of the engine to the insured building, thereby causing it to be more dangerous, is brought under1 the provision of the policy relating to an increased hazard. Whether the proximity to the building increased the probability of fire and thereby increased the hazard, within the meaning of the policy, is a question of fact for the jury: Lebanon Co. v. Franklin Fire Insurance Co., 237 Pa. 360. This question was decided by the jury adversely to appellant.

Exception was taken to the ruling of the court below in refusing to permit the defendant to ask the plaintiff on cross-examination certain questions relating to increased hazard to the premises. The plaintiff did not testify as to increased hazard, and this was á matter of defense. It was an attempt to introduce the defendant’s case by cross-examination of the plaintiff, and was properly disallowed.

Concerning the questions asked Aderhold by the defendant, in an effort to establish hazard, the offer was cleárly objectionable for a number of reasons. It called for an opinion on a matter which was not of a technical nature and one that the jury might well establish unaided by such evidence. The question did not embrace all the material facts in evidence, which were necessary to guide in the formation of an opinion. It failed to include the fact that there was a wood fire burning in the house, which might have caused the fire on the porch. It further did not show a connection between the engine as it was located and the fire that occurred on the porch the previous day. That is, there was no offer to show that the engine threw sparks and there was nothing in the offer to charge the appellee with knowledge that the placing of the engine tended to increase the risk. We think that the court committed no error in refusing the offer in the form it was made.

The assignments of error are overruled and the judgment is affirmed..