Smith v. Mobile Navigation & Mutual Insurance , 30 Ala. 167 ( 1857 )

STONE, J.

There are two questions which distinguish this case from the Mobile Marine Dock & Mutual Insurance Co. v. McMillan & Son, 27 Ala. 77. First, the policy in that ease insured the goods until they should be safely landed at the port of New Orleans ; while by the policy in this record, the risk commenced immediately following the loading of the goods on board the said vessel or boat at New Orleans. Second, in that case, there was no proof that any insurance company or its officers had construed a policy such as this, as continuing the liability of the insurer after the goods were landed from the boat; in this record, there is found the testimony of one witness, who swears that he is, and has been for many years, an officer in an insurance company in Mobile, and that he believes it to have been the general understanding of merchants and insurers in Mobile, that the liability on policies such as this extended to the transportation by the railroad, as well as to the transportation by the steamboat. Two other witnesses swear that, on a loss precisely like this, insurance companies in New Orleans acknowledged their liability by. making two payments to the assured,, under policies in substance like the present.

We are perfectly satisfied with the decision made by this court in the case of the Marine Dock Co. v. McMillan, supra; and unless the two differences noted above require the application of a different rule, that authority is itself decisive of this case.

The expression found in this policy, to the effect that 'the risk shall commence “at New Orleans,” if there were no other words that qualify it, would certainly cover the loss complained of in this case. These words, however, do not stand alone. To give to them the effect contended for, would be, in effect, to expunge the others from tire contract. We know of no rule of construction which will justify this. It is our duty, in construing written instruments, to give to every word and phrase some meaning, if possible. The clause we are considering, reads as follows: “Beginning the adventure upon the said goods and merchandizes from and immediately following the loading thereof on board the said vessel or boat at New Orleans.” The fact of loading the goods on the boat, is as much the starting point of the risk, as is the place named, at New Orleans. If possible, then, we must harmonize these provisions. This we may do, by giving to the words, at New Orleans, the meaning which attaches to similar phrases elsewhere found: namely, when used to designate the place at which a marine risk shall commence or end, it may, according to the usage of trade, mean any of the loading and unloading points at or near said place, which the wants of commerce have rendered common. — See on this point, Brown v. Carstairs, 3 Camp. 160; Moxon v. Atkins, ib. 200.

The fact that this is a marine policy, is strongly persuasive, if confirmation were necessary, that the parties intended to limit their contract to the period of time while the goods were water-bound.

If the policy had contained the distinct statement that the insurers only agreed to indemnify the owners of the goods while they were water-bound, no one, we apprehend, would contend that these terms could be shown by usage, or local custom, to embrace land risks. To allow such evidence, would be to change the entire character of the written contract. We think the language of this policy is equally as inflexible as the case supposed.

It is contended that, in construing this contract, we must give the greater weight to the written over the printed words. We admit the rule in a proper case. [See case of McMillan, supra.] We think, however, that this rule will not aid the appellants. The word boat is written, as well as the words at New Orleans. It was, then, the special intention of the parties to provide indemnity against losses while the goods were on the boat.

This construction leaves parties free to make their own •contracts, and gives effect to them as made. Any other will give this policy a meaning and legal effect directly the opposite of what its words import. While we are willing to construe policies liberally in favor of the assured, we have no authority to make a new contract for them, or engraft upon one already made a provision which, it must be supposed, they have consented to dispense with.

Many good and substantial reasons may be supposed why the land risk was omitted from this policy. The insurance ofiiee may have been unwilling to insure against losses by land, without increase of premium. The assured may have been willing to incur the risks by railroad. At all events, they so made their contract, and they must abide by it.

If insurance offices insert clauses restrictive of their liability, commercial men may refuse to accept their policies. They have no right to ask the courts of the country to relieve them from improvident bargains, when th'ey present no other claim to relief.

The testimony of the witness Bunker did not in the least tend to prove a usage, or'local custom of trade, or a technicality of commerce. If it tended to prove any thing pertinent to the issue, it was nothing more nor less than an attempt to construe — give the legal effect of — a written contract which fills over two folio pages of closely written manuscript. In all the latitude which has b een sometimes accorded to local custom, we have found no. case which justifies this extreme license. By universal consent, the construction of written instruments belongs to the courts of the country. ¥e are unwilling to overturn this-salutary rule of law.

The -other two witnesses relied on to prove the usage contended for, do not pretend there was any such usage. All they testify is, that certain companies in New Orleans, by voluntary agreement, paid for similar losses, on similar policies of insurance. Why they did it, we are not informed. Their testimony is strongly persuasive against the existence of any such custom, for they say it was a new question. This subsequent act of theirs cannot certainly define a liability against others.

The language of this policy is plain and unambiguous. It states the beginning of the adventure, ¿mme&tó&y folloio-inq the loading on the boat. In the case of Barlow v. Lambert, 28 Ala. 704, we considered this question, and there held that proof of custom cannot be received “to give to plain and unambiguous words or phrases a meaning different from their natural import.” We are satisfied with the principle there stated, and hereby reaffirm it.

The external circumstances which were proved in this, case, raise no doubt as to the proper application of the words of this contract, on the point when the risk of the insurers commenced. We here adopt as a part of this opinion the language of C. J. Tindal, 9 Cl. & Fin., 565-6 : “When the words of any written instrument are free from ambiguity in themselves, and where external circumstances do not create any doubt or difficulty as to the proper application of those words to claimants under the instrument, or the subject-matter to which the instrument relates, such instrument is always to be construed according to the strict, plain and common meaning of the words themselves; and evidence de hors the instrument, for the purpose of explaining it according to the surmised or alleged intention of the parties, is utterly inadmissible.” — Addison on Contracts, 149.

We need not say what would be our opinion, if there had been proof tending to show that the phrase, loading on the boat or vessel, had a technical import in mercantile parlance ; and that it meant, taking control of merchandize to be loaded. There was no such proof in this case.

It may be that the carrier in this case is liable. There is no proof in this record tending to show that the insurance office is.

We are satisfied that the charge given by the circuit judge, Avhen the jury returned for further instructions, asserted a correct legal proposition; and without considering in detail the other rulings of the court, we have no hesitation in saying that none of them could have worked any injury to the appellant.

Judgment affirmed.