Opinion
Argued December 6, 1877
Decided December 18, 1877
Henry J. Scudder, for appellant.
Jos. H. Choate, for respondent.
This is an action upon a contract of insurance upon a ship. An inspection of the contract in the record, and our common knowledge that contracts of insurance are almost invariably made by the use of printed forms, with such blanks as need filling written upon with further words to particularize the contract, lead us to suppose that the parties in this case made use of a common printed form for a marine policy, designed when framed and printed, for the insurance of a vessel on a voyage from one port to another. But we see that the blanks in which should appear the names of the several ports, which would be the intended termini, if a voyage was in contemplation, and it was meant to insure the vessel on that voyage — those blanks are not written upon. We at once conclude that the defendants did not intend to take, and did not take a risk upon the vessel for a voyage from one port to another. So much is very plain. We suppose further, that as they meant to make some contract in the nature of marine insurance, it was in their contemplation to make a contract therefor, differing somewhat from a voyage policy. We find in manuscript upon or in the policy, and being in writing controlling over the printed part, the words: " Port-risk in the port of New York." Now the words, "in the port of New York," if they were in the policy, and the words "port-risk" were not, would leave the meaning of the parties in their contract, if it is to be interpreted from the words as they read, somewhat obscure. For we find in the printed provisions of the policy, such as would be deemed risks not unlikely to occur upon the open sea, while they are not impossible of occurrence in the port of New York; such, indeed, as are appropriate to a voyage policy, but such as are not appropriate to a policy on a vessel lying at the wharf, or even at moorings in the bay. While adjudications will help us, with proper testimony, to learn just what are the geographical limits of the port of New York, we are not without hesitation in saying, from the language of the policy alone, just what are the risks which an underwriter would be apt to take upon a vessel in the port of New York, and which by such words may be assumed upon her, whether light or loaded, whether made fast to the wharf, or at anchor, or underway; and which if assumed in one or the other condition, may be continued into the other. So that we are prepared to receive the words "port-risk," as a definition of the risk which the defendants have undertaken in the port of New York. We are prepared to receive them as a limiting and restrictive definition, narrowing the scope of the printed provisions which we have spoken of, and narrowing also the meaning of the written words, "in the port of New York." Being such, they must be indicative of some risks other or shorter than those incurred by a voyage policy. The word "port" attached to "risk" must indicate a risk either liable to be incurred in a port, and not at sea, or differing in some respect from one at sea.
But we are not, as both counsel and the learned court below concede, informed by any judicial decision that any authoritative interpretation has been given to those words when in conjunction. Separately they could be interpreted; together, no full and exact sense is conveyed by them to the mind of one who has not a knowledge of the vocabulary of marine insurers and insured. They have a meaning and bearing upon the true interpretation of the contract; and it seems, as we have already said, a restrictive bearing. Unable, from any natural and ordinary sense of the words, to say exactly what that bearing is, we have to admit that they are used by marine underwriters as a technical term — a term of usage, so far as the continuous employment of technical words may be called a usage. I should rather, however, deem that to be a usage, which has taken words, which in common use, singly or together, have a meaning and intelligibility to all eyes and ears, and which has, by putting them in a particular use, as in some trade or handicraft, attached to them a meaning and effect not consonant with their public or general meaning. Several examples of this are given in Walls v. Bailey ( 49 N.Y., 464). The phrase, "port-risk," is not in that category. It is not used as simply the two words which make it up, but as a compound word and phrase, and as such it does not convey to the public or in general, a definite sense, if any sense. In short, the compound has become one of the technicalities of a business not free from abstruseness, and which deals to much extent in technical phrases, the meaning of which, as used by the experts in the business, needs explanation to the unaccustomed. We see no reason, then, why it was not proper at the trial to take the testimony of men expert in this business to explain to the court the meaning of this technicality. Then, when the testimony had been received from the skilled witnesses of both parties, it was very clear that the proof on either side did not vary from the foliowing idea of the meaning of the phrase: That " port-risk," in a marine insurance policy, meant a risk upon a vessel while lying in port, and before she had taken her departure on another voyage. As there was no conflict of testimony upon this meaning, there was no question upon it to be left to the jury. As it was admitted that when the injury happened to the vessel insured she had taken her departure, and had begun her voyage, there was nothing at all to leave to the jury, and it was the duty of the court to dismiss the complaint.
It is seen, from what we have said, that the evidence of experts was not received to prove a usage; nor were the questions addressed to the witnesses of the defendant directed to that end. One was asked if he was familiar with the usages of the business, but the query was a tender to the real question, "Are you familiar with the phrases used in it?" And the question to which the answer, disclosing the meaning of the phrase, was ultimately given, was: "State the meaning of the phrase among underwriters." Plainly, the inquiries were to find out the meaning of a technical phrase, and not to establish a usage. We, therefore, have not to deal with the legal questions concerned in an attempt to establish a usage, or to determine the rights of parties claimed to be dependent upon the existence of one.
The exclusion of the testimony of the witness Letson is alleged as error. It was needful, for his testimony to be either profitable or proper, that he should be shown to have the skill and knowledge of an expert in the marine insurance business. He did, indeed, give the statement that he was more or less familiar with getting policies from underwriters and attending to marine matters. This was somewhat indefinite, for it did not declare whether the more or the less, had the majority. He did, however, answer positively that he knew of the term "port-risk in the port of New York." When asked what he understood as the meaning of the term, he was checked by an interlocutory cross-examination by the defendant. It then appeared that he had never seen the words "port-risk" in a policy, and did not declare that he had ever known it to be used in the business of insurance, save in a general way. He had never known it used in a policy or an application for one. One may come to an accurate knowledge of the meaning of the technical terms of a science or a trade, by the study of them, as one would study a strange language. This witness did not pretend to that. One most generally comes to an accurate knowledge of the technical terms of a business by a practical and interested use of them, by seeing and knowing the terms when applied to actual transactions, so that the unknown or obscure meaning is demonstrated by the existing fact into which it has been precisely translated. This witness had never seen or known this. He was only acquainted with the terms. He showed no such particular, special or practical knowledge, from acquaintance with them in actual use in the business affairs of men, as qualified him to stand as an expert skilled enough to teach others. An expert is, from the derivation of the word, one instructed by experience, and to become one requires a course of previous habit and practice, or of study, so as to be familiar with the subject. ( Carter v. Boehm, 1 Smith's Lead. Cas., 286, note.) And whether one offered as an expert is qualified to speak as such, is a fact preliminary to his testifying as such, and is to be determined by the court at the trial. ( Jones v. Tucker, 41 N.H., 546.) And it is said that the decision of the trial court is not reviewable. (Id.) We need not take that ground here. The witness, to say the least, did not so clearly show himself qualified to speak, as that it was error to close his mouth, upon the claim made for him to open it as an expert.
We do not look upon the evidence of the experts, which was put into the case, as taken to prove a usage of a trade, but to explain words which had been given a technical meaning, in a business in which they were used, as conveying a sense which the public uninstructed, could not derive from them. Hence the points of the appellant taken upon the contrary idea are not tenable.
The judgment appealed from should be affirmed.
All concur.
Judgment affirmed.