Appeal, No. 9, Jan. T., 1954, from judgment of Court of Common Pleas of Centre County, Dec. T., 1951, No. 171, in case of Hugh C. Dale et ux. v. Mutual Fire Insurance Company of Hummelstown. Judgment affirmed.
John G. Love, with him Roy Wilkinson, Jr., and Love & Wilkinson, for appellant.
Edward L. Willard, with him Willard & Dunaway, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE JONES
The question in this case is whether the insured plaintiff's admitted breach of his promissory warranty contained in a policy of fire insurance barred a recovery on the policy when the breach was not subsisting
at the time a fire occurred and was not the proximate cause of the loss.
The defendant company issued its policy of insurance to the plaintiff, Dale, for a term of one year from date of issue. By the terms of the contract, the company agreed to indemnify the insured for damage by fire to his barn and various other farm buildings. During the term of the insurance, fire destroyed the barn and certain of the other buildings covered by the policy. The insured filed proofs of loss as required by the policy, but the company denied liability. The insured thereupon sued on the policy to recover his loss. In its answer, the defendant denied that the fire was of "unknown origin", as alleged by the complaint, and averred that it was in fact caused by the insured's use of a gasoline engine in proximity to the barn in violation of his promissory warranty in the policy that "When a portable internal combustion engine is used as a motive power for threshing grain or other farm work it is warranted by the insured and made a part of this contract that when same is in use it shall not be located nearer than 25 feet from any building or stack of hay or straw, nor shall any litter or straw be allowed to collect or remain within 15 feet of said engine."
There was no direct evidence as to the cause of the fire. The testimony adduced at trial disclosed that, on the morning of the fire, Dale had operated inside the barn a portable grain-cleaning machine powered by a gasoline engine; that he had ceased his use of the machine some two to two and one-half hours before a fire broke out; that he had taken precautions against fire and had moved the machine and engine to another part of the barn when he had finished using it; that he had remained in the barn an hour or so after that, working there, and then had gone into the fields whence he later
returned to the barn and saw no indication of fire; and that a neighboring farmer, who was in the barn the same morning a couple of hours after the use of the gasoline engine had ceased, had seen neither fire nor smoke when he was there. While the fire, which caused the loss, originated at the place in the barn where the gasoline engine had been ...