I dissent from what I cannot but regard as an extraordinary decision. If the majority opinion is correct, the plaintiff has been paying annually a very high premium (over $1,000) for a liability insurance policy not worth the paper on which it is written. While it is hornbook law that insurance policies should be construed most favorably to the insured, in the present case the court is construing the policy not only favorably to the insurance company but so favorably as to relieve it of any liability whatever under any conceivable circumstances.
For what purpose does a person take out such a policy? Obviously to obtain financial protection against any negligent conduct on his part which might involve him in liability to others. If he were always so careful as to avoid the likelihood of accident he would have no use for liability insurance, because, even if a third person were injured, unless such injury was due to negligence *Page 436 on the part of the insured the latter would not be liable to the injured person and would therefore have no need for insurance. In the present case, for example, the mere fact that the child died from hydro-cyanic poisoning did not entitle its mother to recover against this appellant; it was incumbent upon her to prove that appellant in some way failed to observe all the precautions that a reasonably careful fumigator would have observed under the circumstances. The fact that she secured a verdict shows that, in the opinion of the jury, appellant did not measure up to that required standard of care. Therefore, when the majority opinion now attempts to show that he might or should have taken additional precautions it is merely engaged in establishing what has already been established in the suit of the mother against him, namely, that he was negligent. But his liability for the death of the child because of such negligence constitutes the very reason for which he is now entitled to recover on his insurance policy and for which alone that policy was designed. To hold, as the present decision does, that he cannot recover on the policy because of his negligence, is to say that the policy can never be enforced, because in the absence of negligence the insured would not be liable to the injured person and therefore would have no occasion for any claim against the insurance company; in other words, the only circumstance which could possibly justify his recovery on the policy automatically prevents such recovery. I cannot assent to such a legal paradox or to such an unjust and indefensible result.
It is true, of course, that if an insured agrees in a policy to perform certain covenants or conditions he is bound thereby, but it is obviously equally true that those conditions must not be so construed as to defeat the entire purpose of the policy and make recovery under it impossible.
There are two covenants in this policy which the majority opinion asserts were not performed and for *Page 437 that reason appellant cannot recover. One is that "all overstuffed material including, but not limited to, furniture and bedding, will be beaten and adequate chemical or other test for the presence of gas will be made before allowing any person their use". It is said that appellant did not, either himself or by his employes, beat any of the furniture or other material. But certainly it is absurd for the insurance company to contend that under this clause the beating had to be done by the insured himself or by his own employes; if, as here, he instructed the occupants of the house to attend to the beatingand they did so, what possible difference does it make if the beating was done by one person or by another? Witnesses, including the mother of the deceased child herself, testified that they beat thoroughly the mattresses, pillows, and all the bedding, including that on the bed in which the child subsequently died. But it is said that there were two pieces of furniture as to which there was no proof that they had been beaten, one a couch on the first floor and the other a sofa on the second floor. The answer to this is twofold: (1) There is nothing to indicate that failure to beat these particular pieces had anything to do with the death of the child or that any gas whatever emanated from them or either of them; therefore failure to beat them is of no legal import because not shown to have been a causal factor in the happening of the accident. (2) The clause in regard to beating the furniture provides that the beating is to take place and a test for the presence of gas made "before allowing any person their use". Obviously, therefore the beating and test (as distinguished from the test prescribed in another covenant hereinafter discussed) are only for protection in connection with thesubsequent use of the furniture to be beaten; the purpose of the beating was to make such furniture itself safe for use. There is no evidence whatever that the couch and the sofa were used by anybody after the fumigation, certainly not by the child; the only articles used by the child or by anybody else *Page 438 were the mattresses and the pillows, and these were all adequately beaten.
The other covenant which it is said was not performed by appellant, is that "No person will be permitted to enter the fumigated premises before the fumigator has satisfied himself by adequate chemical or other test and by personal inspection, without gas mask or other means of protection, of every part of the fumigated premises, that it is safe for human occupancy." What is the meaning of this clause? Does it mean that the fumigator must make such complete and exhaustive tests and inspection that the safety of the premises for occupancy is rendered certain? Does it mean that he must make such minimum tests as would be sufficient to exculpate him from any charge of negligence? I have already pointed out that if the fumigator had to measure up to such a standard in order to recover on his policy there would never be any need for him to have a policy because he could not be liable to anyone injured by the gas and therefore would not need liability insurance. It seems to me crystal clear that all that this clause does mean is that the fumigator must in good faith "satisfy himself" that the occupants of the house can safely re-enter. It is only if he does not honestly satisfy himself, and an accident results, that he disentitles himself to recover on his policy. There is not a shred of testimony in the present case to indicate that there was any lack of good faith in the conclusion of appellant's manager that the premises were safe for re-entry. The fumigation was finished around ten o'clock in the morning. Appellant's employes returned to the premises at five o'clock in the afternoon. They opened the doors and windows, and, after an hour's ventilation, the manager was able to enter without the use of a gas mask. He removed the chemicals from which the gas had been generated and made standard chemical tests at various points in the house which showed an entire absence of gas on the second and third floors and none on the first *Page 439 floor except at one point on or under the couch. The majority opinion states in regard to this one spot that hydro-cyanic gas was there "in a deadly quantity." On the contrary, while the test disclosed up to 25 cubic feet of gas per million cubic feet of air at that point, the testimony was that "25 per million of gas can be tolerated for quite a while before they will cause [merely] headaches or slight feeling of illness", and that that quantity was not sufficient to cause death. Although it was testified that under the weather conditions then prevailing it would ordinarily have been considered safe to allow the house to be reoccupied by the tenants after the lapse of between four and six hours (an opinion which the witness said was based on his experience of eight years of fumigation work), nevertheless the tenants were instructed not to re-enter the house until the following morning, and indeed Mrs. Binkley did not re-enter with her child until late the following afternoon, which was twenty hours longer than expert judgment had decided was necessary for safety. Plaintiff's manager was asked: "Q. Is it customary in your particular line of work to make a subsequent test after you had made the first tests, and show the results you had? A. I would say not, in the presence of only 25 per million gas. There were 12 more hours time available before the tenants came back, and it can be safely presumed that these 25 per million will dissipate during that 12-hour period. Q. In your opinion, based upon the experience that you have had, do you think it was safe to allow people to come back the next morning at seven o'clock? A. Yes, I would say yes." In spite of this testimony that the same tests were taken as were customary in the business and that the judgment exercised was based on long experience, the court is now saying as a matter of law that the appellant had no right to "satisfy himself" by thus following the prevailing and normal standards. Certainly, at the very least, it would be for the jury and not for the court exercising judicial hindsight to say whether appellant *Page 440 did honestly and in good faith satisfy himself that sufficient precautions had been taken. It is true, of course, that the child died, but how it came to die is wholly unexplained; there may have been some undetected, and even undetectable, pocket of gas lurking in the flooring, or a gas-pocket may have formed in a closet and dissipated during the night. Mrs. Binkley testified that, sleeping in the bed next to her child, she did not smell or otherwise perceive any gas whatever in her apartment. The child's death was an accident which may have been due (as the jury in the suit brought by the mother has found that it was due) to some negligence on the part of appellant, — some failure to observe the measure of care which he owed to the child under the circumstances, — but to hold that therefore he cannot recover on this policy of liability insurance — intended, as it was, to protect him in that very event — is to render a decision which, in my opinion, is contrary both to the applicable rules of law and to the dictates of justice.
I would remove the nonsuit entered against appellant and award a procedendo.