Hyperlawhypertext legal database Pohalski v. Mutual Life Insurance 36 N.Y. Super. Ct. 234

← Cases

Pohalski v. Mutual Life Insurance

36 N.Y. Super. Ct. 234 4 Jones & S. 234 Court N.Y. Super. Ct. Decision date 1873-06-28 English

Contents

Majority

p. 234
ESTHER D. POHALSKI, Plaintiff and Respodent, v. THE MUTUAL LIFE INSURANCE COMPANY, Defendant and Appellant.

Headnote

Interpretation of a permit issued by a life insurance company, under a policy issued to plaintiff upon the life of her husband, upon his application in her name, and as her agent, for that purpose, and the admissibility of parol evidence to explain or vary its language.
The words of the permit are as follows: “Permission is hereby given to J. M. Pohalski to proceed to Cuba, and return before April 1st, 1871. Ho to take his own risk of death from epidemics. ” Mr. Pohalski, the husband of the insured, obtained this permit Jannary 23d, 1871, and soon after proceeded to the city of Havana, island of Cuba, and while there was seized with a sudden and fatal illness, and died of such illness, February 22d, 1871. That the disease of which Pohalski died was yellow fever.
The yellow fever did not prevail as an epidemic in Havana at any time in the month of December, 1870, or in January or February, 1871, and did not prevail or exist there as an epidemic when the said Pohalski took the disease and died of the same.
On the trial the defendant claimed the right, and offered to show that when Pohalski applied for the permit, the issuance of the same was objected to by the president of the defendant, on the ground of the risk the defendant would run by reason of the prevalence of yellow fever in Cuba at all seasons of the year, and that the permit was finally issued to him, upon the express condition and agreement that he would take his own risk of death from yellow fever. That the parties in their conversation with respect to the permit specified yellow fever and cholera as the diseases intended to be announced by the language used in the permit.
The defendant also offered to show by Dr. Elisha Harris, claimed to be a well-known physician and authority on sanitary subjects, that yellow fever is properly classified in medical science, and known as belonging to diseases called epidemics; that yellow fever, whenever it exists in the city of New York, where the permit was given, is always an epidemic; that yellow fever exists at all times in Havana, and is the peculiarly fatal disease of that climate, and is especially dangerous to strangers, and to persons from the Northern States visiting Havana. All these offers were objected to by plaintiff, and the proffered evidence was excluded on the trial, and exception taken by defendant to the ruling of the court.
Held, by the General Term, That the ruling of the court below was correct.
That the permit was in writing as required by the policy, and it was issued as contemplated by the policy, and in modification of the same, or as a waiver of one of its conditions, and it must be taken to be the repository and
p. 235
evidence of the final intention, understanding, and agreement of the parties, and all oral testimony of a previous colloquium between the parties, or of declarations made at the time of its completion or afterwards, should be rejected.
Before Freedman, Curtis, and Van Vorst, JJ.
Decided June 28, 1873.
That although the permit was issued without any new consideration, and the company was not bound by the terms of the policy to give it, yet, having given it, it is bound by it, because it springs out of, and is based upon, the consideration and terms of the policy; and therefore, whether the said permit be regarded as a modification of the original contract of insurance, or as a waiver of certain of the conditions of the policy, the rule which holds that parol contemporaneous evidence is inadmissible to change its legal effect, is equally applicable (Buckley v. Bentley, 48 Barb. 283 ).
That it not appearing that the word ‘ ‘ epidemics ” was used and understood . by the parties in any other sense than in its plain, ordinary, and popular-sense as a familiar word in the English language, no evidence of any kind, from any other source, was therefore admissible to change that meaning (Baptist Church in Brooklyn v. Brooklyn Fire Insurance Co. 28 N. Y. 153 ; Neff v. Friedman, 2 Sweeney, 607). That the company meant to ; stipulate, and did stipulate for exemption from liability from any disease that might by any possibility prevail in Cuba to an extent which could be called epidemic.
It was also held to be a fact of some significance in interpreting the permit, that it required PohalsM to return from Cuba before the first day of April.
Appeal from a judgment entered upon the report of a referee in favor of the plaintiff, in an action brought upon a life policy.
The referee’s findings were substantially as follows, in regard to the important facts of the case.
That prior to and on the fourth day of June, in the year 1866, the plaintiff was the wife of Jacob M. PohalsM.
That on the said 4th day of June, 1866, the said Jacob M. PohalsM, on behalf and in the name of the plaintiff, applied to the defendant, by application in writing, for
p. 236
an insurance upon Ms life, in the sum of five thousand dollars for the benefit of the plaintiff, and upon such application, on the same day, in consideration of the representations made in the said application, and of the cash payment then made by the plaintiff to the .defendant of the premium of fifty dollars and sixty cents, and- of the semi-annual payment of the like amount thereafter to be to be made on or before the 4th day of June and December in every year during the continuance of the policy, the defendant made and issued to the plaintiff its policy of insurance upon the life of the said Jacob M. Pohalski, whereby the defendant assured the life of the said Jacob M. Pohalski, for the sole use of the plaintiff as his wife, in the amount ‘of five thousand dollars, for the term of Ms natural life. By which said policy the defendant promised and agreed to pay to the plaintiff, if living, for her sole use, the amount of the said insurance, at its office in the city of New York, in conformity with the statute, in sixty days after due notice and proof of the death of the said Jacob M. Pohalski, the balance of the year’s premium,, if any, being first deducted therefrom.
That the said policy contained the condition, that if the said Jacob M. Pohalski should pass beyond the settled limits or the protection of the government of the United States (excepting into the settled limits of the two Canadas, Nova Scotia or New Brunswick), or between the first of July and the first of November, south of the parallel of 36° 30' of north latitude, or enter upon a voyage upon the high seas without the consent of the defendant in each or either of the foregoing cases, previously given in writing, then in every such case the said policy should be null and void.
That on the 23d day of January, 1871, the defendant, upon the application of the said Jacob M. Pohalski, made and delivered, without charging or receiving extra premium therefor, a consent in writing in accordance with the terms of said policy, by which per
p. 237
mission was given to the said Jacob M. Pohalski, in reference to and under said policy, to proceed to Cuba and return before April 1st, 1871—“ he to take his own risk of death from ‘ epidemics.’ ”
That the said Jacob M. Pohalski soon thereafter proceeded to the city of Havana, in the island of Cuba, and while there was seized with a sudden and fatal illness, and on the 22d day of February, 1871, died of such illness.
That the disease of which the said Jacob M. Pohalski so died was yellow fever.
That though yellow fever, in Havana and the island of Cuba is an endemic or an endemical or indigenous disease, and though there occasionally occur, in Havana, in the winter months, from time to time, a few sporadic cases of that disease, yet it rarely prevails or exists in Havana in the winter months as an epidemic, or in the form or condition or to the extent of an epidemic, and did not prevail or exist in Havana, in the form or condition or to the extent of an epidemic, or as an epidemic, at any time in the month of December, 1870, or in the month of January or in the month of February, 1871, and was not an epidemic in Havana, and did not prevail or exist in Havana, in the form or condition or to the extent of an epidemic, when the said Jacob M. Pohalski took the said disease in Havana as aforesaid, or when he died in Havana of that disease as aforesaid.
That the said Jacob M. Pohalski did not die of an epidemic or of a disease prevailing or existing at Havana epidemically, or in the form or condition, or to the extent of an epidemic, either when he was- seized with the disease with which he died, or when he died.
That at sundry times after the making and delivery of the said policy, there were declared by the defendant dividends of over payments of premiums by the plaintiff to certain amounts which, by the terms of the charter of the defendant, were appropriated by
p. 238
the defendant to the purchase of additional insurance, payable with the policy, and that the sum of reinsurance which the said dividends of over payments were so appropriated to purchase, and did purchase, amounted to six hundred and twenty-two dollars and fourteen cents.
And I find and report, as conclusions of law, from the facts above found:
1. That the death of said Jacob M. Pohalski occurred under circumstances bringing it within the risk assumed by the defendent in issuing the said policy.
2. That the plaintiff fulfilled all the conditions of the said policy on her part, and that the samé was in full life and force at the time of the death of the said Jacob M. Pohalski, and has evei since remained, and still is in full life and force.
3. That the plaintiff is entitled to recover from the defendant the said sum of five thousand dollars, and the said sum of six hundred and twenty-two dollars and fourteen cents, both amounting to the sum of five thousand six hundred and twenty-two dollars and fourteen cents, and interest on the same from the 18th day of May, 1871, to the date of this my report, which interest amounts to the sum of six hundred and twenty-three dollars and twelve cents, making the whole sum which the plaintiff is entitled to recover from the defendant six thousand two hundred and forty-five dollars and twenty-six cents.
To each of which findings of fact and of law the defendant duly and separately excepted.
And as additional findings of fact, at the request of the defendant; the referee found as follows :
1. For the seven years previous to 1871, the number of annual deaths in Havana from yellow fever were from 500 to 1,000, independent of the Spanish army.
2. During some years deaths from yellow fever occur in Havana at all seasons of the year.
p. 239
3. Yellow fever is a disease'climatic in its nature, and peculiar to the climate of Havana. .
4. As a further additional finding of fact, the defendant requested the said referee to find that yellow fever is generally known and classified among the division of diseases called “epidemics,” which the said referee refused to do, to which refusal the said defendant duly excepted.
5. As a further additional finding of fact, the defendant requested the said referee to find that the word “ epidemics” has in general use two proper meanings.
a. A class definition including any diseases that may or may not (but generally do) exist in an epidemic form.
b. Diseases existing at the time when the definition is applied in an epidemic condition, or to an epidemic extent.
Which the said referee refused to do, to which refusal the said defendant duly excepted.
6. As a further additional finding of fact, the defendant requested the said referee to find that in the findings of fact contained in the report as signed, the word “epidemics” is used in the sense conceived by the referee to be that in which the word was used by the contracting parties in the permit referred to in the case, viz., ns a disease existing at the time when the definition is to be applied, in an epidemic condition, or to an epidemic extent; which the said referee refused to do, to which refusal the said defendant duly excepted.
The rulings of the referee on the trial, appear in the opinion of the court.
Henry E. Davies and Julien T. Davies for appellant, argued as follows:
Looking at the permit in the case, in view of the facts that stand admitted and were not disputed, viz., that the deceased could not go to Cuba without forfeiting the
p. 240
policy, unless by permission ; that he made application for a permit to visit the island of Cuba during the month of January, 1871, and that in consequence of such application this permit was issued to him, the question first presents itself, what is the meaning to be given to the expression, “he to take his own risk of death from epidemics ” ?
On the part of the plaintiff it is claimed that these words confine the risk to be taken, to such diseases as may exist in an epidemic form or to an epidemic extent. On the part of the defendant, it is claimed that these words, even if susceptible of the meaning sought to be given them by the plaintiff, also imply that the deceased was to take his own risk of such diseases as are properly known and classified among epidemics, for the reason that they' generally exist as epidemics. On the part of the plaintiff it is contended, that as yellow fever did not exist to an epidemic extent when Jacob M. Pohalski died of that disease at Havana, the company is liable. On the part of the defendant it is claimed that as yellow fever generally exists to an epidemic extent, and is generally classified and named among the epidemics or epidemic diseases, that the defendant is not liable.
A distinction may be drawn between the word “ epidemic” in the singular, and “ epidemics” in the plural. An epidemic, in the singular, is a disease affecting many , people. Epidemics, in the plural, are those diseases that generally exist epidemically, but they may or may not exist epidemically at the time spoken of, and, as a class definition, is used, and properly used, to include such diseases as generally exist to an epidemic extent in their manifestations. Any one of the epidemics, when manifested, does not always cause an epidemic, but an epidemic is always caused by one of the epidemics. When the diseases themselves are sought to be classified, they are called epidemics, and when the manifestation of one of them is in view, and it is spoken of with refer
p. 241
ence prominently to that manifestation, the term “an epidemic” is used.
“Epidemics,” as a definition, is easily understood, and its meaning can be accurately defined by reference to the medical works giving a list of diseases classified as epidemics ; but if the intention was to cover only a disease that was to exist to an epidemic extent] at the time the definition was to be applied, the parties were contracting with reference to a very loose and undeterminate term.
An examination of the use of the word in literature will show that the meaning here applied to the word “epidemics,” is a proper and legitimate one. See Copeland) s Medical Dictionary, title Epidemics. f ‘ Epidemics—epidemic diseases.”
“1. Epidemics are such diseases as occasionally pre- “ vail more or less generally in a community at the “same time or season, and depend upon a common “cause.”
“ As respects these epidemics which are less universal “ and fatal, the influence of the seasons is more or less “ manifest.”
“It is impossible to reconcile the modes in which “epidemics are observed to diffuse themselves, or the “ peculiar or novel characters they often assume, or the “ very opposite physical circumstances in which they “occur, with changes in the electric fluids often of in- “ appreciable and insensible kinds.”
“Infection and contagion are amongst the most important agents in the spread of certain epidemics.”
“Epidemics present themselves in one or other of “these modes, according to the combination of the “elements or agents cooperating in their produc- “ tion, and to the influence of these elements, either in “predisposing the system to, or in directly exciting, “ certain trains of morbid action.”
“Thus, it will be seen that epidemics are either (a)
p. 242
“not manifestly infectious, (&) or conditionally infectious, owing to the co-operation of certain circum- “ stances, (c) or primarily infectious and contagious; “the epidemic constitution, or state of the atmosphere, “ etc., favoring their general diffusion.”
“43a. “ The localities to which certain epidemics, as “ yellow fever, are chiefly confined, have been for many “successive years circumstanced, in respect of season “ and weather, similarly to the periods in which that “ disease has been most destructive.”
“Different ages are not equally affected by epidem- “ ics. The exanthematous fevers and whooping coughs “ are most prevalent among, and fatal to, infants and “ children ; influenza to the aged and debilitated.” See also Anstie on Epidemics, a popular work, preface, page 4.
“Special forms of epidemic disease,” page 12. The expression, “ epidemic disease,” is here used as synonymous with “ epidemics.”
See also pages 14, 16, 17, British Epidemics.
“Erysipelas and puerperal fever do not come under the head of serious and widely spreading epidemics.” “ The remaining diseases which are to form the subject of this paper,” page 19.
“ The febrile kind of epidemics,” page 26.
(See authentication of these works by Dr. Harris at folios 124 and 128 of case.)
Joseph R. Flanders, for respondent.
Ho proof is required, or, indeed admissible, of the meaning of words, and the grammatical construction of the English language, so far as they are established by the rules and usages of the language. Such meaning, and grammatical construction, are, prima facie, matter of law, to be construed and passed upon by the court (Brown v. Brown, 8 Met. 576 , 577).
p. 243
This whole controversy hinges upon this single clause In the permit: “ He to take his own risk of death from “epidemics.” And the effect of this clause is determined by the meaning which shall be attached to the word £i epidemics.”
1.. This is an established and familiar word in our language, in universal use, having a clearly defined and well-known meaning, as well in our standard dictionaries as in popular understanding and usage, and uniform in both, and of this the court will take judicial notice.
a. Webster defines an “epidemic” to be " a disease “ generally prevalent, but not dependent upon any “local morbific cause, and not confined to any season, “climate, region, or country.”
In defining the adjective he says :
“1. Common to many people. An epidemic disease “is one which, independent of local causes, seizes a “great number of people at the same time, or in the “ same season. Thus we speak of epidemic fever ; epi- “ demic catarrh. It is used in distinction from endemic.
“2. Generally prevailing; affecting great numbers ; as epidemic rage; an epidemic evil.”
b. This word is used in the same sense in the press and among the people at large, there being few words in our language the meaning of which is better understood by all persons not of a very low grade of mental capacity and intelligence. This is as well known as a fact, and it is as much within the cognizance of the court, as is the meaning attached to the word tree, pump, hat, or the name of any other familiar object. So, too, in the press, nearly every day there appears some reference to disease breaking out or prevailing somewhere, in which the word is used, and never in any other sense than that given by Webster. Thus, two summers ago, when the yellow fever appeared at Charleston, it will be recollected that the press made frequent allusions to the progress it was making, using'
p. 244
such expressions as these : " Although cases of fever " have been reported, it cannot be regarded in its na~ ture epidemic. ” " The highest evidence that the disease “is not epidemic, is a reference to the past. Whenever “it assumes that shape, it develops speedily after its •“first appearance. We have before us the tables for “the years 1854 and 1858, when it became epidemic.”
In fact, such references are of notable frequency both in conversation and in the press, in which this word is uniformly used in the same sense.
c. Of the meaning of the word, then, there can be no-doubt. It is fixed and uniform, and free from all ambiguity.
d. It was used, in the transaction involved in this litigation, by business men, in an ordinary transaction, and is to be given that common meaning which the court will take judicial notice is attached to it by both the dictionaries of our language, and the popular understanding.
Accurately speaking, yellow fever, as it ordinarily occurs in Havana, even when prevailing extensively, is not an epidemic, but an endemic disease, because of its being generated by local causes, producing the same disease at certain seasons, year after year, in the same locality. Such is the definition of this word given in the dictionary:
“ Endemic, n. A disease of an endemic nature.”— Webster.
“Endemic, a. Peculiar to a people. An endemic “ disease is one to which the inhabitants of a particular “country are peculiarly subject, and which, for that " reason, may be supposed to proceed from local causes, “as bad air or water. The epithet is also applied to a “ disease which prevails in a particular season, chiefly “or wholly in a particular place.”—Id.
The case was simply a sporadic one, and being sporadic, it could not be either an epidemic, or an endemic7
p. 245
as will be seen by Webster’s definition of the word, which is as follows :
“ Sporadic, a. Separate; single; scattered, used “ only in reference to disease. A sporadic disease is “ one which occurs in single and scattered cases, in distinction from an epidemic and endemic, which affects ■“many persons at the same time.
“ Sporadic diseases are opposed to endemics, as accidental scattered complaints.—Parr.”
a. Though the word sporadic is not in very common use among the mass of the people, it is familiarly used, and its meaning is well understood, by educated, intelligent persons. It also frequently appears in the newspapers, expressed in its true sense. STo longer ago than April 26th, the papers in this city contained the following dispatch:
“Vienna, April 25th, 1873.
“ There were twenty cases of sporadic cholera—scattered, individual attacks—brought to hospital yester“day.”
The true construction of this permit, then, can admit ■of no doubt. The meaning of the word epidemics is beyond all question; find the analysis of the provisions ■ of the permit, above given, shows that the parties could not have intended to use the word in any other sense than its familiar and popular one.
1. The intent of the parties must be drawn from the language they have used, and if ordinary and popular language has been used, in plain and express terms, it must be taken in its usual and familiar sense, and by that the parties must abide.
2. The court has but to accept what the parties have written, and give to it its natural and obvious meaning.
a. “ The law, as we have already had occasion to ' ‘ say, in reference to various topics, frequently supplies, “by its implications, the want of express agreements “between the parties. But it never overcomes, by its
p. 246
11 implications, the express provisions of parties. If “these are illegal, the law avoids tüem. ' If they are “legal, it yields to them, and does not put in their steal "what it would have put if they had been silent ” (2 Pars. on Con. 27 [3d ed.]).
3. The appellant had the power to make its own conditions, in issuing this permit, and did make such as it saw fit. They thereupon became a part of the contract between the parties. The court will not make a different contract for them.
a. “We have frequently had occasion to state, that “ courts of justice can only carry into effect such con- “ tracts as parties have made. They cannot malee con- “ tracts for them, or alter or vary those made by them” (Id. 34; Emery v. Owings, 7 Gill [Md.] 494).
4. “It is not allowable to interpret what has no need “of interpretation” (Broom’s Leg. Max. 456, 6th Am. ed.).
5. “The law will not make an exposition against the “ express words and intent of the parties ” (Id.).

This action is brought upon a life policy, and the questions presented by the appeal may be said to relate almost exclusively to the interpretation of the permit issued under the policy, and the admissibility of parol evidence to vary its language.

The policy was issued to the plaintiff directly, and by its terms, in consideration of the sum of fifty dollars and sixty cents, duly paid by the plaintiff, and of the semiannual payment of a like amount, to be made by her during the continuance of the policy, the company insured the life of Jacob M. Pohalski, plaintiff’s husband, for the sole use of the plaintiff, in the amount of five thousand dollars, for the term of his natural life. It was issued and accepted upon the express condition enumerated therein,, that if the said Jacob M. Pohalski should pass beyond

p. 247
certain limits, specifically described therein, without the consent of the company, given in writing, it should be null and void. Subsequently permission in writing was given to Mr. Pohalski to proceed to. Cuba, a place within the prohibition of the policy, by the following permit:
“Permission is hereby given to J. M. Pohalski . . . “to proceed to Cuba, and return before April 1, 1871. “ He to take his own risk of death from epidemics.”

Mr. Pohalski proceeded to Cuba, and died in the city of Havana in the month of February, 1871. As to the cause of his death, the referee, upon sufficient testimony, found as follows:

“ That the disease of which the said Jacob M. Pohalski so died was yellow fever.
“ That though yellow fever, in Havana and the island of Cuba, is an endemic, or an endemical or indigenous disease, ahd though there occasionally occur in Havana, in the winter months, from time to time, a few sporadic cases of that disease, yet it rarely prevails or exists in Havana in the winter months as an epidemic, or in the form or condition or to the extent of an epidemic, and did not prevail or exist in Havana, in the form or condition or to the extent of an epidemic, or as an epidemic, at any time in the month of December, 1870, or in the month of January, or in the month of February, 1871, and was not an epidemic in Havana, and did not prevail' or exist in Havana, in the form or condition or to the extent of an epidemic, when the said Jacob M. Pohalski took the said disease in Havana as aforesaid, when he died in Havana of that disease as aforesaid.
“ That the said Jacob M. Pohalski did not die of an epidemic, or of a disease prevailing or existing at Havana epidemically, or in the form or condition or to the extent of an epidemic, either when he was seized with the disease with which he died or when he died.”
p. 248
Upon these facts the referee found, as a conclusion of law •-

That the death of said Jacob M. Pohalski occurred under circumstances bringing it within the risk assumed by the defendant in issuing the said policy.

The defendant, upon the trial, claimed the right to show that when Mr. Pohalski applied for the permit to visit the island of Cuba, the issuance of it was objected to by the president of the defendant, on the ground of the risk the defendant would run by reason of the prevalence of yellow fever in the island of Cuba at all seasons of the year, and that the permit was finally issued to said Pohalski, upon the express condition and agreement that he would take his own risk of death from yellow fever; that the parties, in their conversation with respect to the permit, used the word “epidemics” as including yellow fever and cholera as diseases, without any reference to their existing in an epidemic form or to an epidemic extent at any particular time, and that the word was so used in the permit. The evidence, however, of the conversation between Mr. Pohalski and Mr. Winston, showing their use, and their intent in the use of the word epidemics, was excluded, and to its exclusion the defendant duly excepted.

The defendant also offered to show, by Dr. Elisha Harris, a well-known physician and authority on sanitary subjects, that yellow fever is properly classified in medical science, and known as belonging to diseases called epidemics ; that yellow fever, whenever it exists in the city of New York, where the permit was given, is always an epidemic, and that yellow fever exists at all times in Havana, and is the peculiarly fatal disease of that climate, and is especially dangerous to' strangers and to persons from the Northern States visiting Havana.

All these offers were objected to by the plaintiff.

The evidence was excluded and defendant excepted.

i entertain no doubt as to the correctness of this tuI

p. 249
ing. The permit was in writing, as required "by the policy, and it was issued in modification of the policy, or as a waiver of one of its conditions, as contemplated "by the policy. Being reduced to writing, it must "be taken to be the repository and evidence of the final intention and understanding of the parties. The rule is elementary that when parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagements, it is conclusively presumed that the whole engagement of the parties and the extent and manner of their undertaking was reduced to writing; and all oral testimony of a previous colloquium between the parties, or of conversation or declarations at the time when it ivas completed, or after-wards, is rejected (Greenl. on Ev. § 275; Norton v. Coons, 2 Seld. 33 ; Barry v. Ransom, 2 Kern. 462).

So firmly established is this rule, that it has frequently been applied and enforced without the citation of authorities in support of it (Thorp v. Ross, 4 Keyes, 546 ; O’Beirne v. Lloyd, 1 Sweeny, 19 ; Milton v. Hudson River Steamboat Co., 4 Lansing, 76 ; Delamater v. Bush, 63 Barb. 168 ).

As the books abound in cases of the application of this rule, a few appropriate examples will be amply sufficient here.

Lamott v. The Hudson River Fire Ins. Co. (referred to in a note to 17 N. Y. 199 ) was an action upon a fire policy which prohibited the use of camphene on the premises insured, except upon permission, in writing, to be endorsed upon the policy, with a charge for an extra premium therefor. The amount of premium endorsed upon the policy exceeded the regular premium upon such risks as appeared to be covered by the policy by sufficient to cover the price for the use of camphene. It was held, nevertheless, that, as the endorsement did not state that the amount of premium noted was for the

p. 250
privilege of using camphene, and as it did not appear in some other manner in writing that such privilege had "been secured to him, the assured was not protected, and parol evidence could not be received to vary the terms of the policy, or to show a waiver of the prohibition at the time of the execution of the instrument.

Howell v. The Knickerbocker Life Ins. Co. ( 19 Abb. 217 ) was an action brought by the widow of George H. Howell to recover on a policy effected by her upon the life of her deceased husband, for one year, with the privilege of annual renewal for life, if, on the 15th day of July in each year, the premium was paid. On July 15th, 1864, the annual premium was not paid. On the same day Mr. Howell was seized with apoplexy, and on the following day he died. Some days thereafter the premium was tendered to the company, and refused by the latter. The court held that the stipulated payment was a condition precedent to the continuance of the policy, and that parol evidence of a usage or agreement on the part of the company at the time the insurance was effected, to receive payment of premiums after the day named, could not be received.

In the case of the Mayor, etc., of the City of Hew York against The Brooklyn Fire Insurance Company ( 41 Barb. 231 ), it was determined that the evidence offered by the defendant of the verbal statements of the agent of the plaintiffs, who effected the insurance, in respect to the future use and occupation of the building was properly excluded, because such evidence would tend to vary the operation and effect of the language contained in the policy, and because a warranty as to such future use and occupation must be contained in the policy, or be reduced to writing in proper form, before it can be admitted to affect its. construction or obligation.

In Thompson v. Hall ( 45 Barb., 214 ), the defendant, Hall, had signed the note in suit as surety for the defendant Thompson, with the knowledge and at the re

p. 251
quest of the plaintiff, who was the mother of the principal debtor. On the trial Hall offered to prove that he signed only on condition, which was assented to by the plaintiff, that upon the maturity of the note plaintiff would collect it promptly, and that plaintiff had failed so to do. The evidence was excluded and the General Term affirmed the ruling.

How, it is undoubtedly true that the permit in question was issued without a new consideration. The company was not bound to give it. But, having given it, it is bound by it, because it springs out of and is based upon the consideration and terms of the policy. Consequently, whether the said permit be regarded as a modification of the original contract of insurance, or as a waiver of certain of the conditions of the policy, the rule which holds parol contemporaneous evidence inadmissible to change its legal effect, is equally applicable. This has been substantially determined in Buckley v. Bentley ( 48 Barb. 283 ). In that case the endorser of a note had. subsequently written over his signature the words “ notice of protest waived by me.” On the trial evidence was admitted to show that the verbal arrangement between the parties, which resulted in the entry of those words on the note by the defendant, was, that demand of payment, as well as of notice, was waived. On appeal this was held error, for which the judgment was reversed and a new trial ordered. The court held, that although the arrangement then made was not a contract, because there was no consideration, and had to operate, if at all, by way of estoppel in pais, still the question was, what was the arrangement % and as the parties undertook to put it in writing, they were to be deemed to have given thereby full expression to their meaning, and hence parol evidence of their language, contradicting, varying, or adding to that which was contained in the written instrument, was inadmissible. “That there was no consideration for the agreement,”

p. 252
says Pabkeb, J., in delivering the opinion of the court, “ cannot change the rule of evidence in regard to what shall be competent proof of what the agreement was. It is a rule of evidence applicable to the mode of proving a fact, and whether that fact is a contract or a waiver, can make no difference with reference to its applicability.”

It is also true, that the rule referred to is directed only against the admission of any other evidence of the language employed by the parties in making the agreement than that which is furnished by the writing itself, and that the writing may be read by the light of surrounding circumstances. But this is permitted only for the purpose of finding out the true sense of the written words as the parties used them. It is for this reason that, whenever the necessity arises, the rule does not exclude the testimony of experts to aid the court in reading the instrument.

Unless, therefore, the terms of a written instrument have generally, in respect to the subject-matter, as, by the known usage of trade or the like, acquired a peculiar sense, distinct from the popular sense of the same words, or unless the context points out that, in the particular instance, and in order to effectuate the immediate intention of the parties, they should be understood in a peculiar sense, they are to be understood in their plain, ordinary, and popular sense (Greenl. on Ev., § 278). It is not allowable to interpret what has no need of interpretation (Bro om's Leg. Max.), and parol evidence should never be allowed to create an ambiguity where none exists (Auburn City Bank v. Leonard, 40 Barb. 119 .)

The word “ epidemics,” in the permit, is not shown to have been used in the peculiarly medical sense attributed to it by the learned counsel for the company ; nor was it used in a sense peculiar to the business of life insurance. On the contrary, it is plainly to be seen that it was used and understood in its plain, ordinary, and popular sense as a familiar word in our language. Ho

p. 253
evidence of any kind from any other source was, therefore, admissible to change that meaning (Baptist Church in Brooklyn v. Brooklyn Fire Ins. Co., 28 N. Y. 153 ; Neff v. Friedman, 2 Sweeny, 607 ).

The company evidently did not intend to stipulate solely against diseases which usually assume an epidemic character. It meant to stipulate, and did stipulate, for exemption from liability in case of death, from any disease, however simple and harmless, under ordinary circumstances, at home, that might, by any possibility, prevail in Cuba to an extent which could be called epidemic.

The requirement of the permit, that Pohalski should return from Cuba before the first day of April following its date, at which time the sickly season usually commences there, is not without significance upon this point. This interpretation, which, upon the whole, is the one most favorable to the company, excludes, however, the idea that plaintiff assumed the risk of her husband’s death from yellow fever when not prevailing to an epidemic extent.

The evidence offered by defendant, to vary or explain the ordinary and popular meaning of the language of the permit, was, therefore, properly excluded; and when it is finally considered that the attempt to give such evidence was, in fact, an attempt to vary such meaning, by the alleged assent of one now deceased, who was not shown to have had any authority whatever from the plaintiff to make terms or stipulations for her, plaintiff’s case becomes still stronger in reason, though perhaps not in law.

The judgment should be affirmed, with costs.

Curtis and Van Vorst, JJ., concurred.

Note.—Unanimously affirmed by Court of Appeals, April 7, 1874, 'without a written opinion, the Court resting its decision upon the foregoing opinion of Judge Fbbedmait.—Repobtebs.

Cases cited