Kratzer v. Pennsylvania Casualty Co.

Opinion by Mr. Justice Elkin, The sole defense of the Casualty Company is that appellee failed to erect a covering over the sidewalk in violation of a city ordinance, and that by reason of a stipulation in the policy his right to recover was forfeited thereby. The policy among other things, provides: “This policy does not cover loss from liability for injuries when the assured has failed to observe any statute affecting the safety of persons, or has violated any local ordinance made in the same behalf.” The parties are bound by their covenants, and if it appeared in the present case that the ordinance in question was reasonable and that the work being done at the time of the accident came within its provisions, there could be no recovery. The learned court below, after due consideration upon the motions for a new trial and judgment [518] non obstante, held that the work being done at the time of the accident was not of such a character as the ordinance contemplated, and therefore failure to cover the sidewalk was not a violation of it. In this view we concur. It is a penal ordinance and must be strictly construed. The ordinance in express terms relates to the construction of a new building more than one story in height, and to the unroofing and tearing down of an old building fronting on any street, square or alley. This is followed by the phrase “or to perform any work thereon,” which certainly must refer to the character of buildings, and the kind of work mentioned, in that part of the ordinance which immediately precedes. Then follows the requirement, that “it shall be the duty of the persons erecting, unroofing, taking down or performing any work on any such building,” to erect a good and substantial covering over the pavement in front “of said building.” In the case at bar no new building was being erected, nor was any work done on any building being torn down or unroofed. It necessarily follows that if the provisions of the ordinance did not apply, no duty was imposed thereby upon the appellee. If the ordinance imposed no duty, there could be no violation by reason of failure to observe its provisions. This was the view of the learned court below and we have reached the same conclusion. This disposes of the case and makes it unnecessary to discuss other questions relating to the trial. Assignments of error overruled and judgment affirmed.