CHAPTER XVIII.

COURT AND JURY

QUESTIONS FOR.

SEC. 485. Questions for court.

SEC. 486. Questions for jury.

Questions for the court.

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SEC. 485. It is the province of the court to construe contracts, and determine their legal effect, and to pass upon all questions of law arising under them. It is for the court to determine from the context and an inspection of the instrument, what words are used therein and to decipher illegible words, and it is error for it to leave it to the jury to say what an illegible word was intended to be. Thus where the word "six" was illegibly written, the "s" having the appearance of an "o," and the court left it for the jury to say whether it was "six" or oix," it was held error, and that it was the province and duty of the court to determine that question.' So it is for the court to determine whether the facts proved will warrant a verdict for the plaintiff," or to say, when certain facts are admitted, what their legal effect is. Thus, it is for the jury to say whether a fact concealed is material, but when the facts are agreed upon, it is a question for the court to determine whether as a matter of law it was material, and in all cases it is for the court to say what is the legal effect of a certain state of facts, and if the facts are admitted, it is for the court to apply the law thereto, and there is nothing for the jury to pass upon. So, too, it is for the court to say whether the contract is executed in proper form, or as required by law, but, whether a contract was in fact made is a question for the jury. So it is for the court to say what forms a

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597.

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Lapeer, etc., Ins. Co. v. Dagss, 30 Mich. 159; Crafts v. Marshall, 7 C. & P.

Ins. Co. v. Folsom, 18 Wall. (U. S.) 237; Fay v. Alliance Ins. Co., 16 Gray (Mass.) 455.

3 Fletcher v. Commonwealth Ins. Co., 18 Pick. (Mass.) 419; Clark v. Union Mut. F. Ins. Co., 40 N. H. 333; Lyon v. Commercial Ins. Co., 2 Rob. (La.) 266; 2 Ben. F. I. C. 192; Appleby v. The Astor F. Ins. Co., 54 N. Y. 253.

Winnesheik Ins. Co. v. Schueller, 60 Ill. 465; Riggin v. Patapsco Ins. Co., 7 H. & J. (Md.) 279.

Wood v. Atlantic, etc., Ins. Co., 50 Mo. 112; Smith v. Newburyport, etc., Ins. Co., 4 Mass. 668; Winnesheik Ins. Co. v. Scheuller, ante; Appleby v. Astor F. Ins. Co., ante.

"Vatton v. National Ass. Co., 22 Barb. (N. Y.) 9.

part of the contract, as whether the application, by-laws, etc., are so far incorporated into as to become a part of it. But, where a paper on its face does not purport to have been made by him, or on his behalf, it is for the jury to say whether he in fact executed it, or authorized its execution, and the mere fact that it is referred to and made a part of the policy, does not tend even prima facie to establish the fact.' It is for the court, in the first instance, to construe the meaning of common words used in a policy, and it is presumed that they were used in their common or ordinary sense,' but it may be shown that the words have, by usage, acquired a local or peculiar meaning, and in that case, evidence is admissible to show what peculiar meaning the words have acquired, and it then becomes the province of the jury to define their meaning, and such also is the case in reference to words not belonging to the common vernacular," and it may be said that, in all cases, when extrinsic evidence must be resorted to to determine the meaning of a word or phrase, it is the province of the jury to determine the sense in which it was used.*

Thus, it has been held competent to introduce evidence of an usage among insurers to regard a building filled in with brick in front and rear and supported by brick buildings on both sides, as a building "filled in with brick ;" and in such case, it is for the jury to find whether such was the usage; and, generally, when, by usage, a word has acquired a signification different from that ordinarily attached to it, it is for the jury to determine whether such usage exists, and what

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'Witherell v. Maine Ins. Co., 49 Me. 200; Denny v. Conway, etc., Ins. Co., 13 Gray (Mass.) 492.

2 Wall v. Howard Ins. Co., 14 Barb. (N. Y.) 383.

Sleight v. Rheinlander, 1 John. (N. Y.) 192; Smith v. Wilson, 3 B. & Ad. 728; Allegre's Admrs. v. Maryland Ins. Co., 6 H. & J. (Md.) 408; Dow v. Whetton, 8 Wend. (N. Y.) 160; Taylor v. Briggs, 2 C. & P. 525; Macey v. Whaling Ins. Co., 9 Met. (Mass.) 354; Locke v. Rowell, 47 N. H. 46; Wait v. Fairbanks, Brayt. (Vt.) 77; Noyes v. Canfield, 27 Vt. 76; Stewart v. Smith, 28 Ill. 397.

Harb v. Hammett, 18 Vt. 127; Reynolds v. Jourdan, 6 Cal. 108; Williams v. Wood, 16 Md. 220; Brown v. Brooks, 25 Penn. St. 210; Myers v. Walker, 24 Ill. 133; Ganson v. Madigan, 15 Wis. 144; Baron v. Placide, 7 La. An. 229; Hite v. State, 9 Yerg. (Tenn.) 357; Fitch v. Carpenter, 43 Barb. (N. Y.) 40; Carey v. Bright, 58 Penn. St., 70; Jenny Lind Co. v. Bower, 11 Cal. 194; Eaton v. Smith, 20 Pick. (Mass.) 150; Sleight v. Hartshorne, 2 John. (N. Y.) 531; Hone v. Mut. Saftey Ins. Co., 1 Sandf. (N. Y.) 137; Spicer v. Cooper, 1 Q. B. 424. In Houghton v. Gilbert. 7 C. & P. 701, a question arose as to the meaning of the word "cargo. ERLE, counsel for the defendant, was referring to Entick's Dictionary to ascertain the meaning, when he was stopped by TINDAL, C.J., who said, "It is a question of mercantile construction. You had better lay aside your dictionary and appeal to the knowledge of the jury, for, after all, the dictionary is not authority."

Fowler v. Etna Ins. Co., 7 Wend. (N. Y.) 270.

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meaning, by such usage, the words or phrase have acquired;' and, generally, it may be said that in all cases where extrinsic evidence is resorted to, to ascertain the peculiar sense of words or phrases, it is the province of the jury to determine whether, by usage, they have acquired a peculiar sense, and what sense they have acquired, and then it is for the court to construe the policy according to the sense of the words or phrases as found by the jury. But when words have received a judicial interpretation; or when the language of the policy is plain and explicit; or the usage is not communicated to the party sought to be affected by it, or of such notoriety that it must be presumed that the parties knew of, and contracted in reference to it, it cannot be permitted to affect the interpretation to be placed upon the policy. Nor can a new or independent stipulation or condition be incorporated into a policy by proof of a usage. Thus, it is not competent to show that it is the usage for the insured to give notice of the erection of a new building,' or that the insurer is not regarded as liable for a loss, unless it is ascertained in a certain manner," nor, indeed, of any usage contravening the express provisions of the policy; and in all such cases, the court is to construe the words or phrases employed, according to their ordinary and usual signification."

Proof of a custom or usage is never admissible when it has been expressly excluded by the parties, nor when it is excluded by necessary implication. When it is opposed to the clear intention of the parties, to admit it, would permit the making of another and different contract from that made by the parties."

1Scott v. Bourdillou, 5 B. & P. 213; Hancox v. Fishiny Ins. Co., 3 Sum. (U. S.) 132; Eyre v. Marine Ins. Co., 5 W. & S. (Penn.) 116; Hartshorn v. Union, etc., Ins. Co., 36 N. Y. 172; Marcy v. Whaling Ins. Co., 9 Met. (Mass.) 354; Union Bank v. Union Ins. Co., Dudley (S. C.) 171; Coit v. Commercial Ins. Co., 7 John. (N. Y.) 385; Dow v. Whitton, 8 Wend. (N. Y.) 160; May v. Buckeye Ins. Co., ante.

2 Barget v. Orient, etc., Ins. Co., 3 Bos. (N. Y.) 385.

Lattomus v. Farmers' Mut. F. Ins. Co., 3 Houst. (Del.) 254; Smith v. Mobile, etc., Ins. Co., 30 Ala. 167; Hare v. Barstow, 8 Jurist, 928; Hall v. Janson, 4 El. & Bl. 500; Hone v. Mut. Safety Ins. Co., 2 N. Y. 235; Winthrop v. Union Ins. Co., 2 Wash. C. C. (U. S.) 7.

Protection Ins. Co. v. Harmer, 2 Ohio St. 452.

Б Stebbins v. Globe Ins. Co., 2 Hall (N. Y.) 632.

• Rankin v. American Ins. Co., 1 Hall (N. Y.) 619.

Turner v. Burrows, 8 Wend. (N. Y.) 144; Parkinson v. Collier, Park. on Ins. 470; Pawson v. Barnvelt, 1 Doug. 12.

Harmer v. Protection Ins. Co., ante; King v. Enterprise Ins. Co., 45 Ind. 43; Cobb v. Lime Rock, etc., Ins. Co., 58 Me. 326; St. Nicholas Ins. Co. v. Mercantile, etc., Ins. Co., 5 Bos. (N. Y.) 238; Hearne v. Marine Ins. Co., 20 Wall. (U. S.) 488; Warner v. Franklin Ins. Co., 104 Mass. 518.

• Insurance Co. v. Wright, 1 Wall. (U. S.) 471; Allegre v. Ins. Co., ante.

As to what constitutes a warranty, is a question for the court, but whether there has been a breach thereof, is a question for the jury.' So as to what facts establish a waiver of a condition in a policy, is a question for the court, but as to whether there were facts amounting to a waiver, is for the jury." So as to whether notice or proofs of loss were in time, or whether the proofs are sufficient, is for the court, but the question whether there are facts excusing delay, or whether delay or defects have been waived, is for the jury. So whether a loss is within the perils insured against, the facts being found or admitted, is for the court, but it is for the jury to say what peril caused the loss.* So, too, it is for the jury to say whether the assured rendered as full an account of the loss as the circumstances would permit."

Jury

SEC. 486. It is the peculiar province of the jury to determine all questions of fact in a case. Thus, it is for the court to say what amounts to a misdescription of premises, but it is for the jury to say whether or not a misdescription was material to the risk, so as to misrepresentation or concealment,' so it is for the jury to say whether there has been a breach of warranty, and, in a case where the warranty is dependent upon a matter of fact whether a warranty in fact exists. It is for the jury to say whether there has been a material alteration or increase of the risk;' whether a certain usage exists; whether a

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1 Gates v. Madison Co., etc,, Ins. Co., 2 N. Y. 43; 2 Bennett's F. I. C. 785.

* Bodle v. Chenango, etc., Ins. Co., 2 N. Y. 53; 2 Bennett's F. I. C. 794; Noonan v. Hartford F. Ins. Co., 21 Mo. 81; Charleston, etc., Ins. Co. v. Neve, 2 McMull, (S. C.) 237.

'Edwards v. Baltimore Ins. Co., 3 Gill. (Md.) 176.

Kenniston v. Merrimack, etc., Ins. Co., 14 N. H. 341; 2 Bennett's F. I. C. 288; Merchants', etc., Ins. Co. v. Tucker, 3 Cr. (U. S.) 357; Abithal v. Bristow, 6 Taunt. 464; Miles v. Fletcher, Doug. 230.

' Franklin F. Ins. Co. v. Updegraff, 43 Penn. St. 350. "Columbian Ins. Co. v. Lawrence, 10 Pet. (U. S.) 507.

'Sexton v. Montgomery Mut. Ins. Co., 9 Barb. (N. Y.) 191; Clark v. Union Ins. Co., 40 N. H. 333; Lyon v. Com'l Ins. Co., 2 Rob. (La.) 266; Cumberland Valley Ins. Co. v. Mitchell, 48 Penn. St. 374; Protection Ins. Co. v. Harmer, ante; Masters v, Madison, etc., Ins. Co., 11 Barb. (N. Y.) 624; Seminary v. Hamilton Ins. Co., 14 Gray (Mass.) 459; Mutual Ins. Co. v. Deale, 18 Md. 26; N. Y. F. Ins. Co. v. Walden, 12 John. (N. Y.) 513; Bans v. World, etc., Ins. Co., 6 T. & C. (N. Y.) 364.

'Curry v. Com'l Ins. Co., 10 Pick. (Mass.) 535; 1 Ben. F. I. C. 333; Denis v. Ludlow, 2 Cai. (N. Y.) 111; Percival v. Maine Mut. Ins. Co., 33 Me. 242.

'Richards v. Protection Ins. Co., 30 Me. 273; Curry v. Com'l Ins. Co., 10 Pick. (Mass.) 535; Gamwell v. Merchants', etc., Ins. Co., 12 Cush. (Mass.) 167; Jolly v. Baltimore Eq. Society, 1 H. & G. (Md.) 295; Schenck v. Mercer Co. Mut. F. Ins. Co., 24 N. J. 447; Perry, etc., Ins. Co. v. Stewart, 19 Penn. St. 115.

10 Daniels v. Hud. Riv. Ins. Co., 12 Cush. (Mass.) 416; Palmer v. Blackburn, 1 Bing. 62.

word has acquired a peculiar meaning, and what that meaning is ;' whether the assured has an insurable interest in the property insured;" whether a notice required by the policy to be given was given within a reasonable time;' whether performance of a condition has been waived; whether the assured has been guilty of fraud or false swearing; whether a misdescription is material;' whether a certain usage exists; and indeed, all questions of fact arising under the issues made, are exclusively for the jury, and it is error for the court to trench upon their province.'

Thus it will be seen that nearly all questions arising outside the actual construction of the contract, and the legal effect of facts found or admitted, are mixed questions of law and fact, and which it is not competent for the court to decide without the aid of the jury. If the facts are admitted, or there is no dispute thereto, it is for the court alone to apply them and determine their legal effect," but in all cases where the facts are in dispute, it is exclusively for the jury to find what the real facts are, and it is error for the court to withdraw the question from the jury, or to direct a verdict, even though the facts are uncontradicted; for, although the facts are not denied, yet, unless admitted, it is competent for the jury to refuse to find a fact from the testimony of a witness whose credibility they doubt."

'Evans v. Com'l, etc., Ins. Co., 6 R. I. 47.

Mitchell v. Home Ins. Co., 32 Iowa, 421; Mowry v. Home, etc., 9 R. I. 346. Davis v. Western Mass. Ins. Co., 8 R. I. 277.

*Lycoming, etc., Ins. Co. v. Schollenberger, 44 Penn. St. 259.

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Mc Laws v. United, etc., Institution, 33 Scot. Jur. 286.

McKurdy v. N. British Ins. Co., 20 C. C. (Sc.) 463.

Columbian Ins. Co. v. Lawrence, 2 Pet. (U. S.) 25; S. C., 10 id. 507.

8 Palmer v. Blackburn, 1 Bing. 62.

'Charleston, etc., Ins. Co. v. Corner, 2 Gill. (Md.) 410; Field v. Ins. Co. of N. America, 3 Md. 244.

10 Winneshiek Ins. Co. v. Schueller, ante; Smith v. Newburyport, etc., Ins. Co., ante; Fletcher v. Commonwealth Ins. Co., ante; Woods v. Atlantic Ins. Co., 50 Mo. 112.

11 Charleston Ins. Co. v. Carver, 2 Gill. (Md.) 410; Field v. Insurance Co. of N. America, 3 Md. 244.