I dissent for an additional reason not included in the dissent of Mr. Justice HORACE STERN. In my view there has been a substantial performance of the assured's warranties contained in the rider of the policy of insurance.
This was an action in assumpsit on a policy of liability insurance issued by the defendant insurance company to the plaintiff, who was engaged in the business of exterminating vermin. The contract was to indemnify the plaintiff against liability for negligence by the assured or his employees. His employees were admittedly negligent, causing the death of an infant child. In a trespass action, the plaintiff was held liable and paid *Page 441 the amount of the verdict rendered by the jury. He then brought suit against the defendant upon its policy. The court below entered a nonsuit which it refused to strike off.
As this was a policy indemnifying against negligence, I agree with Mr. Justice STERN that if the contract be construed to provide that the insurance company only indemnified the assured against his negligence provided the assured warranted to commit no negligence, such a contract would indeed be an anomaly. No business man of ordinary intelligence would accept such a contract. Heretofore a policy of insurance has always been construed favorably to the assured and not to the insurance company.
The defendant maintains that plaintiff violated the 5th and 6th clauses of the warranty reading as follows: "5. Minimum temperature of 60° Fahrenheit will be maintained during ventilation and 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. 6. No person will be permitted to enter the fumigated premise 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."
The court below decided, as matter of law, that an "overstuffed" piece of furniture on the first floor and another piece of such furniture on the second floor had not been beaten and that therefore the insurance company was not liable on the policy.
According to the testimony, at the direction of the assured's foreman the owner of the apartment did beat overstuffed material, especially the bedding. It is true that the assured did not affirmatively prove that the two pieces of overstuffed furniture had been beaten, but on the other hand there was no evidence offered by *Page 442 either the plaintiff or the defendant that it had not been so beaten.
As to the "adequate chemical or other test" it is conceded that such a test was made. It was described in detail. The foreman testified that, from his tests, he satisfied himself as to the safety of entry. This may have been a mistaken view. The test, it is true, may have been negligently made, but it was against such negligence that the plaintiff was insured and for no other discernible purpose.
The present situation is very different than that inSgarlat v. Griffith, 349 Pa. 42, 36 A.2d 330, where the insured failed to provide any watchman. It is more analogous to the case of Lyford v. New England Mutual Life Insurance Company,122 Pa. Super. 16, 184 A. 469, where a watchman was furnished, but who failed in his duty. An owner of a business, with employees, is not required to perform all of these services personally. Necessarily such an employer is required to delegate duties to his employees. The purpose of the insurance was to protect the owner where his employees are negligent.
I would, therefore, reverse the judgment and submit the question of substantial performance to a jury.