Majority
p. 453ROSA E. RAINSFORD, Aministratrix, &c., Plaintiff and Appellant, v. THE ROYAL INSURANCE COMPANY, Defendants and Respondents.
Headnote
A policy issued by the Royal Insurance Company of Liverpool, through its agency at the city of New York, issued a policy upon the life of one George B. Waldron, which contained a condition in the body of the policy, which provided that the policy and insurance should be subject to the several conditions, restrictions, and stipulations indorsed thereon in the same manner as if they had been incorporated in the body of the policy.The policy also contained another provision, as follows : “Provided
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also that in case the said assured shall at any time depart beyond the limits of Europe, without the previous consent of the said company, from time to time duly signified by indorsement hereon, then this policy shall cease and be void to all intents and purposes whatsoever, and all premiums or moneys which shall have been paid in respect thereof, shall be forfeited to the use of the said company.” ,
The following memorandum was printed on the policy immediately after the signatures of the directors, the date and signature of the agent being written in said printed memorandum, all of which was indorsed upon said policy when the same was issued :
“ Memorandum, 28th November, 1863: It is hereby agreed that the life assured by this policy shall have permission to reside in any part of North America, to the northward of thirty-six degrees and thirty minutes of north latitude, but not to the westward of the Rocky Mountains, and likewise, from the first day of November to the first day of July, to travel and reside in any place in the United States south of the above limits, but not to the westward of the Rocky Mountains ; also, to pass in decked vessels, in time of peace, from any one port of Europe to another, from any part of North America to another, within the above limit's, and between any European port and any North American port within the said limits, anything herein contained to the contrary notwithstanding.
“ By order of the committee,
“ J. H. F. “A. B. McDosfai/d, Agent.”
Meld, that the prohibition contained in the body of the policy, and the exceptions and conditions contained in the memorandum indorsed thereoi£¡ must be read and construed together, and being thus read and construed, the policy is to be considered as containing a condition that would read as follows: “ Provided also that in case the said assured shall at any time depart beyond the limits of Europe, excepting in traveling or residing in any part of the United States to the northward of thirty-six degrees thirty minutes north latitude, and in any part south of that line between the first day of November and the first day of July, then and in such case this policy shall- cease and be void,” &c. Such a policy by its terms prohibits the assured from traveling or residing in any part of the United States south of thirty-six degrees thirty minutes north latitude, between the first day of July and the first day of November, of any year during the life of the policy, and if assured violates its provision or prohibition, the penalty is that the policy ceases to be valid.,
At the time the assured made his application, and before the policy issued, the insurance company issued to the assured a stipulation * or permit as follows:
p. 455Before Barbour, Ch. J., Freedman and Spencer, JJ. Decided December 31, 1871.
“ It is understood and agreed that said George B. Waldron has permission to proceed, by first-class vessel, to New Orleans, on and after this date.
“ A. B. McDonald, Agent.
“ New York, 33d October, 1863.”
This was written upon the foot of a receipt of the same date, given by the company to the assured for his premium paid oh his proposal or application for assurance.
The assured sailed on October 34, 1863, from New. York to New Orleans, and after his arrival at the latter place, he continued to reside there until August 33, 1864; returning to New York August 31, 1864.
The company claimed that the policy was violated by this residence in New Orleans, and refused to be bound by the same, and to receive any further premium on account thereof. The assured died in February, 1865, from disease of the brain, which first showed its commencement November 1, 1864. Reid, that the written stipulation or permit given to the assured to proceed to New Orleans, affected only the contract between the company and assured at the time the permit was given, and was not intended to be incorporated into the policy; and the policy could not be reformed so as to include the same within its terms. Also, Held, that the permit was a temporary condition or contract to enable the assured to proceed to New Orleans, between its date (October 33), and November 1, that being a time that the agent of the company and the assured assumed would be prohibited in the policy when issued. Its interpolation into the policy could not benefit the assured, as no reasonable construction of its literal terms would extend it as a permission to reside south of the proscribed line.
Its utmost limit of construction would only permit the assured to proceed to New Orleans after its date, and to return north of the pro- • scribed line before July 1, of the next year.
Appeal from a judgment entered upon the findings of fact and law made by judge of special term in favor of defendant for costs against the plaintiff, August 16, 1870.
In October 1863, one George B. Waldron made ap
p. 456
plication to the defendants for an assurance on his life for the sum of fifteen thousand dollars. The application was in accordance with forms of the defendants, and consisted of the statements of the applicant, his physician or medical attendant, and of one of his friends, and also of one Williams, the agent of applicant in procuring the assurance, all of which statements were made in the form of answers to questions from these parties respectively, except the concluding declarations of said Waldron, and the report of the medical examiner of defendants, all of which formed a part of said application. The application being formally completed about the 22nd day of October, 1863, said Waldron paid to defendants’ agent in New York the sum of two hundred and seventy-nine dollars and seventy-five cents, and received a receipt, of which the following is a copy:
Exhibit “ F”
“The Royal Insurance Company of Liverpool, “New York Agency, 22d October, 1863.
t « j gt^ I ‘ ‘ Received from George Buckmaster Wald-|canceled, f r0I1) Esq., the sum of two hundred and seventy-nine xV-g- dollars, premium on a proposal of assurance for fifteen thousand dollars, on his own life, which is to be forwarded immediately to the head office at Liverpool, England, for acceptance. If it be accepted, a policy will be issued in accordance therewith ; if declined, the above mentioned premium will be returned. But in case the said George Buckmaster Waldron die before the decision of the head office shall-have been received, the sum insured will be paid in accordance with my instructions.
“A. B. McDonald,
$279t\V Agent.”
Afterwards, at the request of Waldron and on his
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behalf, Mr. Williams applied to defendants and obtained a permission, which was written upon the foot of the foregoing receipt, and reads as follows :
Exhibit “ G.”
“ It is understood and agreed that said George B. Waldron has permission to proceed, by first-class vessel, to Mew Orleans, on and after this date.
“ A. B. McDonald,
‘ ‘Agent.
“Mew York, 22d October, 1863.”
This was obtained several days after the signing of the receipt. At the time the receipt was made and delivered Waldron executed and left with Williams an assignment of the policy to George S. Rainsford, and which was afterwards, on the receipt of the policy, delivered with the foregoing receipt and permission to said G. S. Rainsford by Williams, as directed by Waldron. The policy was duly issued by defendants, delivered to and accepted by Williams, as the agent of Waldron, and, as before stated, delivered to Rainsford, of whose estate plaintiff is administratrix, about December 1863. Waldron sailed on October 24, 1863, and after his arrival he continued to reside there, until August 23, 1864, when he sailed for Mew York by the steamer Yazoo, arriving August 31, 1864. In the latter part of September or first of October, 1864, Waldron called upon the agent of the defendants at the office of the company in Mew York for the purpose of making the policy good, and was informed by the agent that the company considered the policy vitiated by his continued residence in the South, that' before the company should make it good they should require a new examination by its medical examiner, and a large extra premium, for his residence at the South during the summer months. About the same time a Mr. Speir
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called in behalf of the plaintiff upon the defendants, and offered to pay any extra premium if any there was on the policy, in order to keep it good. Defendants’ agent informed him that the company considered the policy as vitiated by Mr. Waldron living south beyond the time allowed by the policy, and refused to do anything until Waldron had been examined, and declined to receive any premium on that ground. Afterwards, and in October, 1864, plaintiff tendered to the agent of .the defendants three hundred dollars, as and for any premium due on the policy. The tender was refused on the grounds of the policy being vitiated by the residence of Waldron south.
Waldron died at Stonington, Conn., February 18, 1865, from disease of the brain, which first showed its commencement November 1, 1864. Formal proofs of his death were made and sent to the agent of the defendant in October 1866, with a letter of which the following is a copy :
Exhibit “ P.”
u 58 Wall Street, New York,
‘ ‘ October 27th, 1866.
“A. B. McDonald, Esq., Agent,
“ Boyal Insurance Company of Liverpool:
“ Gentlemen—Herewith please find proofs in the policy 11,419, on life of Greorge B. Waldron, in our hands for collection of amount due ; please advise us when you will be ready to pay the same, and oblige “ Yours respectfully,
“ Weeks & Forster.”
Defendants replied as follows:
p. 459
Exhibit “V.”
“Boyal Fire and Life Insurance Office.
“ Life Department. No. 56 Wall Street,
“ New York, 17th November, 1866. “Messrs. Weeks & Forster:
“ Gentlemen—In answer to yours of 7th inst., calling my attention to the insurance upon the life of George B. Waldron, referred to in a previous letter, and asking to be advised, ‘are the proofs of the death of the assured sufficient and satisfactory to the company, and has the company yet arrived at any conclusion as to its action in the matter,’ I have only to reply, as I did verbally to your previous letter in the interview I had with your Mr. Forster, that the Boyal Insurance Company were not insurers upon the life of George B. Waldron at the time of Ms death, the policy which he had once held having been avoided by flagrant violations and breaches of its conditions, and that state of facts having been fully recognized by himself, before his death, and that the company have never hesitated, for a moment, to reject any claim which may be made upon them under the policy, and the proofs of death delivered to me are at your disposal.
“ Yours respectfully,
“A. B. McDonald,
“Agent.”
Afterwards, plaintiff requested defendants, in writing, to reform the policy .so as to set forth the actual agreement made by Waldron with defendants when the insurance was made, which request was not complied with.
On the receipt and acceptance of the application of insurance of Waldron at the office of the company defendants in Liverpool, England, the policy in question was filled up and transmitted to defendant’s agent in
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New York, complete in all respects except adding the dates and the signatures of three of the directors, which the agent had power to make, and which he did do and delivered the same as heretofore stated. The form of the policy appears to be one adopted by the defendants for assurance of lives in New York, for there is printed upon the same, at the head thereof, these words: “_ZVew TorTc Foreign Policy, A. B. McDonald, Esq., Agent.” After stating the terms of the assurance, there follows in the body of the policy a condition or provision that the policy and assurance shall be subject and liable to the several conditions, restrictions, and stipulations indorsed thereon in the same manner as if they were incorporated in the body of the policy. Then follows several conditions and provisions united in one paragraph, one of which, separated from the others, is as follows: “ Provided also that in case the said assured shall at any time or times depart beyond the limits of Europe, without the previous consent of the said company, from time to time duly signified by indorsement hereon, then this policy shall cease and be void to all intents and purposes whatsoever, and all premiums or moneys which shall have been paid in respect thereof shall be forfeited to the use of the said company.”
The following memorandum is printed on the policy immediately after the signatures of the directors, and may be properly termed an indorsement on the policy, the date and signature of the agent being written in. said printed memorandum, all of which was indorsed upon said policy when the same was issued :
“Memorandum, 28th November, 1863 : It is hereby agreed that the life assured by this policy shall have permission to reside in any part of North America to the northward of thirty-six degrees and thirty minutes of north latitude, but not to the westward of the Rocky Mountains, and likewise, from the first day of No vena
p. 461
ber to the first day of July, to travel and reside in any place in the United States south of the above limits, but not to the westward of the Rocky Mountains ; also, to pass in decked vessels, in time of peace, from any one port of Europe to another, from any part of North America to another, within the above limits, and between any European port and any North American port within the said limits, anything herein contained to the contrary notwithstanding.
“By order of the Committee,
“ J. H. F. “ A. B. McDonald, Agent.”
The judge, before whom this case was tried, found for the defendants. One of his findings in the case was as follows: “6th. That one of the terms and conditions of said’ policy was and is, that the said Waldron should not travel or reside in any place in the United States south of thirty-six degrees thirty minutes north latitude, from July 1st to November 1st.” To this finding no exception was taken as appears in the case, nor was there any taken to that part of the 10th finding, in which the judge found that Waldron resided south of thirty-six degrees thirty minutes from July 1st to August 23rd, 1864.
The judge also found that Waldron was told at the time of the negotation for the assurance, by Williams, his agent in the premises, that under the policy to be issued, he (the said Waldron) could not reside or travel south of thirty-six degrees thirty minutes, north latitude, between 1st July and 1st November without the permission of the company ; also, that the permission to go to New Orleans, dated October 22, 1863, was obtained by Williams at the request of Waldron, after the application for assurance had been made and the receipt of the same and the money paid as premium given ; also, that the residence in New Orleans, from July 1st to August 23rd,
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1864, was not under nor authorized by said permission; and to these latter findings exceptions were duly taken by plaintiff s attorneys.
Weeks & Forster, for appellants.
Barlow, Larocque & Macfarland, attorneys, and W. W. Macfarland, of counsel, for respondents.
I hold that the policy issued upon this application was delivered and accepted by the assured as the contract of assurance, and is the contract to be considered by the court.
That the written permission of the defendants, given to Waldron, affected only the contract existing between defendants and the assured at the time the permission was given. That by its terms as compared with the agreement between the parties at the time and the contract as made by the issue and acceptance of the policy, this permission was not intended by the parties to be incorporated into the policy ; it was a temporary condition or permission made for the convenience and benefit of the assured, to enable him to travel, between October 22nd and November 1st, 1863, south of the line, that he and his agent and defendant’s agent believed and assumed would be proscribed by the policy when it issued. The policy is dated of the 28th of November, 1863, and could not be affected by this permission, except by the literal terms of the same, which included no permission to reside at, but only u to proceed to New Orleans.” No reasonable construction of this permission would extend it as a permission to reside south of thirty-six degrees thirty minutes, even if held to apply to the policy. Its utmost limit of construction would only permit the assured to proceed to New Orleans after its date, and return north of the proscribed line, , before July 1st of the next year. Therefore the conclusion of the learned justice, that the interpolation of
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the same in the policy conld not benefit the plaintiff, was correct; and his refusal to reform the policy so as to include it forms no basis for the reversal of this judgment.
After a full consideration of all the exceptions of the plaintiff to the rulings of the court below, I find nothing in the caise to justify a reversal.
Upon the argument of this appeal the question was raised by the learned chief justice, “Whether the policy itself, in its several terms and conditions, contained any prohibition against the assured residing south of thirty-six degrees thirty minutes north latitude at any portion of the year. The question appeared to be one that had not been considered nor acted upon by either party prior to the argument. I think this is the only serious question in the case, and the only one I propose to discuss.
From a full review of the case, I conclude no such question arose before the judgeupon the trial. N"o one suggested any doubt as to the effect of the agreement or contract of assurance as contained in the policy. Plaintiff sought to overcome an assumed prohibition, by proof of this consent or permission, and of the terms of assurance made between the parties prior to the issue of the policy, and sought a reformation of the policy so as to conform the same to the conditions of the application. The judge, in his findings, states this prohibition as existing in the policy, and the plaintiff’s attorney finds no fault with nor takes exception to the same. So much for the views and actions of the parties, and of the court below. I consider this policy as a very imperfect instrument, so far as expressing clearly the prohibition claimed, and which seems to have been understood by the parties-.
The defendants appear to be an English company, doing business at Liverpool, but their policy is dated and apparently issued at New York, and assures the
p. 464
life of a citizen of New York who pays the premium or consideration of assurance to their New York agent. It contains a condition in the body of the policy, that if the assured, departs beyond the limits of Europe, without the consent of the' company indorsed on the policy, that the policy shall cease and be void. If there were no terms nor conditions subsequently expressed, that changed or affected this condition, I should hold that the policy was void on its face, because of the contradiction of its terms or the impossibility of the same being fulfilled by the assured, or reconciled with the status of the parties at the time of its execution. But the wisdom of the directors, of counsel of defendants, have sought a remedy for these things, and have caused a memorandum to be indorsed on the policy which allows the assured to reside and travel beyond the limits of Europe, and to travel and reside in any place in the United States south of thirty-six degrees thirty minutes north latitude, from November 1st to July 1st. If the prohibition contained in the body of the policy and the exception or conditions in the memorandum are to be read and construed together, then the policy contains the desired prohibition.
I-am satisfied, if the policy alone was before us, that we should have great doubt as to the intention of the parties in regard to any prohibition being contained in the policy itself; yet I think it is one of those contracts where the meaning of the words or terms used are of that doubtful or unintelligible character, that parol testimony should be admitted to explain the same. With the whole evidence in this case before us, especially this written permission, I am satisfied that a just and reasonable construction of this contract would cause the condition in the body of the policy, and in the memorandum indorsed thereon, to be read and construed together, and that the prohibition assumed and understood by both parties exists, and has force
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thereby. I hold, therefore, that this policy is to be considered in this review on appeal, as if the condition in the body of the policy read as follows: “ Provided also that in case' the said assured shall at any time depart beyond the limits of Europe, excepting in traveling or residing in any part of the United States to the northward of thirty-six degrees thirty minutes north latitude, and in any pari south of that line be-the first day of November and the first day of July, then and in such case this policy shall cease and be void,” &c. This construction of the policy admits the prohibition, and therefore, the residence of the assured in the South, during the year 1864, against the terms thereof, released the defendants from the conditions of assurance.
I conclude,this judgment should be affirmed, with costs.