39 Wis. 87 | Wis. | 1875
This is an action on a marine policy of insurance issued by the defendant upon a schooner, the property of the plaintiff. The vessel was lost while taking in a load of wood at a bridge pier near Bayley’s Harbor on the west shore of Lake Michigan. The policy had printed on the margin the words, u Loading offshore prohibited.” The important question in the case is in regard to the meaning of these words in the
The plaintiff introduced the policy in evidence, proved the time and circumstance attending the loss of the vessel, and then rested, without offering any proof, or making any explanation, of the meaning of the prohibitory clause, or to what act it applied. The defendant moved for a nonsuit, which was overruled. The first exception relied on for a reversal of the judgment is the one taken to this ruling of the court refusing to grant the nonsuit.
On this point the learned counsel for the defendant assumes, as the basis of his argument, that the words in question are of doubtful signification, so much so that it was impossible for the court, looking on the face of the instrument, to ascertain their sense and meaning, and give them application; and consequently that parol evidence was necessary to render them intelligible. This being the case, it is insisted that it was incumbent on the plaintiff, offering the policy in evidence and seeking to recover upon it, to show what the words meant, and to establish the fact' that they did not include loading at a bridge pier.
There would certainly be conclusive force in this reasoning if the assumption were sound that the phrase “ loading offshore ” was so obscure or unintelligible that the court, without the aid of extrinsic evidence, was unable to give it any meaning or place any rational construction upon it as used in the contract; but such, it seems to us, is not the case. On the contrary, it is possible to construe the language and give the words an interpretation, without any exjjlanation or aid Rom parol testimony. And, giving to the language used its common and apparent meaning, we should say that the clause in question was only intended to prohibit loading at a distance from and away from the shore while the vessel was lying at anchor, and that it did not include loading at a bridge pier. A bridge pier is really a projecting wharf, is a permanent
It was claimed on the part of the defendant, that, by well -established custom or usage, the phrase “ loading offshore,” when used in maritime contracts, more especially when inserted in a marine policy of insurance, included any manner of
“It sometimes happens,” says Prof. Parsons in his work on Marine Insurance (vol. 1, p. 77 et seq.), “that the words used have a peculiar commercial meaning, and then the reason of their use, or of any provision respecting them, may assist in ascertaining that meaning. Or they may be technical words of a trade or business; for there may be in this instrument [a marine policy] as in any other, words peculiar to a certain act or occupation. Such words occur most frequently in instruments respecting machinery and the like, but they may occur in any instrument, and wherever they occur, witnesses who are experts may be called to give their meaning.” “ Experts,” he observes, “are very frequently called in insurance cases, but generally in relation to the condition or character of the vessel, or other facts in the case. They may, however, be called in reference to the construction of a policy, if technical words, as we have already defined them, appear in it. * * * In the construction of all contracts it is indeed a rule which is founded on obvious justice and reason, that if words are used which are peculiar to the subject matter of that contract, and when so used have a meaning which is well, widely and long known, the parties must be presumed to have used those words with that meaning.” p. 81. And the learned author cites in the notes to the text a great many authorities in support of the rule that, “where terms are used which are known and understood by a particular class of persons in a certain special and peculiar sense, evidence to that effect is admissible for the purpose of applying the instrument to its proper subject matter.”
"Within this rule it was certainly competent and proper for the court to receive the testimony introduced on the trial for the purpose of ascertaining the true meaning of the particu
But the court further told the jury that if the phrase may be understood in more senses than one, it was to be interpreted in the sense in which the defendant had reason to suppose the plaintiff understood it. Under this instruction it is obvious the juay might have found that “loading offshore,” in the sense in which nautical men would understand the term, prohibited loading off a pier, but that this was not the sense in
In the case of Morse v. Buffalo Fire & Marine Ins. Co., 30 Wis., 534-539, Mr. Justice IvoN, arguenclo, refers approvingly to this rule, and thinks it might well be applied in tbe
By the Gourt. — The judgment of the county court is reversed, and a new trial ordered.