White v. Western Assurance Co. of Canada

[271] Opinion by Mr. Justice Gordon: This was an action of covenant on a policy of insurance dated April 12, 1883, by which the defendant undertook to insure against loss by fire the machinery, tools, patterns, etc., belonging to the plaintiff, in and about an iron foundry which was held under a lease from one James Lighty. The assured property, together with the foundry, was destroyed by fire on the 12th of May, just one month after the date of the policy. The defense was that this policy became and was made null and void in consequence of a breach, by the assured, of the following condition: “If in said premises there be kept gunpowder, fireworks, nitroglycerine, phosphorus, saltpeter, nitrate of soda, petroleum," etc., “then and in every such case this policy shall become void." The admitted facts are that petroleum was used as fuel for the engine by which the machinery of the foundry was driven, which fuel was drawn from a tank or barrel kept in a shed united with and so made to form part of the main building, and, as one of the witnesses says, some 5 or 6 feet from the furnace. The oil was conducted from the barrel by a % inch pipe to the place of consumption, an iron pan in or under the boiler; and as this fuel was drawn from the barrel, a fresh supply was furnished as necessity required. We may here observe, obiter, that, while there are devices by which petroleum can be and is used as a fuel for raising steam, with perfect safety, that above described is certainly not one of them. Nevertheless, it is not for us to determine whether a fuel of this kind, and so used, was more or less dangerous than Avood or coal. The only question for us is whether the keeping of a barrel of petroleum in the insured premises was such a breach of the condition in the policy as released the company from its obligation. We are always unwilling to enforce a forfeiture when such result can be avoided; nevertheless, when the intention of the parties is plainly expressed, that intention must bo regarded as the law of the contract; and we cannot laAvfully ignore it, even to prevent a forfeiture. But as to the parties before us, the unequivocal agreement, as found in the policy, is that the [272] keeping of petroleum in the premises insured shall render that policy null and void. That petroleum was so kept is not denied; and this, not, as in the case of Mears v. Humboldt Ins. Co. 92 Pa. 15, 37 Am. Rep. 647, temporarily and for casual use, but habitually and for constant use. Nor was it, as in the Citizens’ Ins. Co. v. McLaughlin, 53 Pa. 485, an article of such vital necessity in the conduct of the business of the insured that its use could not be ignored, and, therefore, must have been recognized as a matter not subject to the condition. Petroleum, however convenient and economical, was certainly not a fuel without which the foundry could not have been run, since its place could well have been supplied by wood or coal. What shall we say then ? That the contract of the parties shall not stand? But on what ground can we justify a conclusion such as this ? The parties were sui juris; no fraud is alleged, nor is the condition even unreasonable. The company was not willing to insure against so dangerous a commodity as petroleum, and therefore expressly forbade, not only its use, but even its presence on the property, and under and subject to this condition the plaintiff accepted the policy. Under such circumstances, were we to reverse the court below we must not only disregard the contract of the parties, but also overrule our own cases of Birmingham F. Ins. Co. v. Kroegher, 83 Pa. 64, 24 Am. Rep. 147, and Lancaster F. Ins. Co. v. Lenheim, 89 Pa. 497, 33 Am. Rep. 778, which in principle rule the case in hand. The judgment is affirmed.