Andrews, Ch. J.
The most serious question in this case arises on the construction of the writing signed by the assured on the 13th day of April, 1889. If it was merely a receipt it was open to explanation or contradiction, because a receipt is an admission merely, and not a contract.
(Ryan
v.
Ward,
48 N. Y. 204.) But a receipt may embody a contract also, and when the written instrument has this double character, it is, so far as pertains to the contract, subject to the same rules of construction, and can be impeached in the same manner only, as other agreements in writing. Among the principles which apply in such cases is the familiar one that, in the
absence of fraud or mistake, or want or failure of consideration, oral evidence is inadmissible to add to, contradict or vary the written terms or the legal import of a written contract. The defendant insists that the writing of April 13th, 1889, was both a receipt and a contract; a receipt so far as it acknowledged the payment of twenty-five dollars in satisfaction of the claim for the injury sustained hy the assured on the 8th day of April, and a contract whereby he surrendered and gave up his insurance and wholly terminated his relation as a member or policyholder in the company. If this is the necessary construction of the writing it would be difficult to resist the conclusion that, when the second injury, of April 27th, occurred, the policy was not in force. But the rule which forbids the introduction of oral evidence to contradict a written agreement is to be administered in harmony with another rule, that where the alleged written agreement is ambiguous or fairly capable of two constructions, the circumstances which led to and attended its execution, the situation of the parties and the subject-matter may be shown and considered in aid of its interpretation. It is the contention of the defendant that the insured surrendered the policy on the 13th of April, and that this is conclusively indicated by the words in the receipt following the number of the policy, namely: “ Which is hereby surrendered.” If this is the necessary construction of the words, they state a fact which undeniably was not true. The policy was not surrendered at that or any subsequent time, but remained in the possession of the assured until his death. The words “ which is hereby surrendered,” if given the broad meaning attached to them by the defendant, import a present physical surrender of the policy itself, and this was not done. If that had been intended the transaction was left incomplete. But taking those words in connection with the context, we think the fair and reasonable meaning of the writing was that the policy was surrendered as to the claim, which was the subject of the settlement, so that in respect to the injury of April 8th there should be no further claim against the defendant. It protected the company against
farther liability for that injury, whatever might happen or however much the then existing symptoms might thereafter be aggravated. This construction, moreover, is the only one consistent with the justice of the transaction. The only thing the parties had in view was the settlement of the claim for the injury of April 8th. The terms of the settlement were agreed upon, and nothing had been said about a surrender of the policy. There was no reason why the assured should be required to give up the contract of insurance. The assessments had been paid, which kept the policy in force until June 9th. If meanwhile another injury should happen he would be protected. Nor was there any apparent reason why the company should desire to terminate the insurance. The risk, so far as appears, was a good one. Its only interest was to make a final and complete settlement of the claim for the injury of April 8th. It probably could have successfully resisted the claim as it then stood, under the strict language of the policy, but the agent stated in substance that it was for the interest of the company to be liberal in the adjustment of claims, and this' was a reasonable motive for its action in conceding it's liability. The receipt, as the evidence tends to show, was intended as a mere record of the verbal agreement, and of the payment made by the company. After the oral agreement had been co'usummated the agent produced a printed form, filled in the necessary descriptive particulars, and presented it to the assured for signature, and the assured signed it after the agent explained to him that the surrender of the policy was not important. It may be well, in conclusion, upon this point to repeat the language of the receipt: “ Received from the Manufacturers’ Accident Indemnity Co., of Geneva, N. Y., the sum of twenty-five dollars ($25), being in full satisfaction and final settlement of any and all claim I now have or may have against said company for loss resulting from injuries received on the 8th day of April, A. D. 1889, under my policy No. 12,157, which is hereby surrendered.” The Avords “ which is hereby surrendered,” we hold may and ought to be construed as referring to the claim
describe'! in the context, and to indicate that as to that, and that alone, the rights of the assured, under the policy were surrendered. The rule applied to the construction of a release, that generfi words following words of special release may be restrained to the matter specially recited, confirms the construction we have given to the writing in question.
We think the court did not err to the prejudice of the defendant in charging that if the jury should find that the virulent matter which produced the blood poisoning was communicated to the wound coincident with its infliction, and the death was produced by the blood poisoning, it ivas a death within the policy. The policy provides that the insurance shall not extend “ to any case except where the injury is the proximate and sole cause of the disability or death.” There was evidence upon which the jury could find the fact submitted. There was medical testimony to the effect that the virus was probably on the umbrella^ or whatever instrument it ivas which inflicted the wound; and the condition of the thumb and the bandaging afforded an inference that that was not a source of the virulent infection. All the evidence upon this point was submitted to the jury, including the statement of the assured in the notice of injury, and the jury having found the fact in favor of the plaintiff, the finding cannot now be disturbed. Upon the fact as found, the-inoculation of the wound at the very time of its infliction was a part of the injury. Without the wound there would have been no inoculation, and so, also, Avithout the inoculation the Avound Avould not probably have been fatal. But it is impossible to separate the two in the practical construction of this condition in question. Both were contributing and co-existing causes of the death, set in motion and operating together from the same moment of time. (See
Fitton
v.
Accidental Death Ins. Co.,
17 C. B. [N. S.] 122;
Smith
v.
Accident Ins. Co.,
L. R. [5 Exch.] 302.)
ISTor do Ave think there Avas error in the ruling as to the condition requiring immediate notice to be giAmn to the company
of an accident or injury. The notice given of the second injury, on the 2nd of May, was concededly in time, but it did not contain all the particulars specified in the condition.
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Andrews, Ch. J.
The most serious question in this case arises on the construction of the writing signed by the assured on the 13th day of April, 1889. If it was merely a receipt it was open to explanation or contradiction, because a receipt is an admission merely, and not a contract.
(Ryan
v.
Ward,
48 N. Y. 204.) But a receipt may embody a contract also, and when the written instrument has this double character, it is, so far as pertains to the contract, subject to the same rules of construction, and can be impeached in the same manner only, as other agreements in writing. Among the principles which apply in such cases is the familiar one that, in the
absence of fraud or mistake, or want or failure of consideration, oral evidence is inadmissible to add to, contradict or vary the written terms or the legal import of a written contract. The defendant insists that the writing of April 13th, 1889, was both a receipt and a contract; a receipt so far as it acknowledged the payment of twenty-five dollars in satisfaction of the claim for the injury sustained hy the assured on the 8th day of April, and a contract whereby he surrendered and gave up his insurance and wholly terminated his relation as a member or policyholder in the company. If this is the necessary construction of the writing it would be difficult to resist the conclusion that, when the second injury, of April 27th, occurred, the policy was not in force. But the rule which forbids the introduction of oral evidence to contradict a written agreement is to be administered in harmony with another rule, that where the alleged written agreement is ambiguous or fairly capable of two constructions, the circumstances which led to and attended its execution, the situation of the parties and the subject-matter may be shown and considered in aid of its interpretation. It is the contention of the defendant that the insured surrendered the policy on the 13th of April, and that this is conclusively indicated by the words in the receipt following the number of the policy, namely: “ Which is hereby surrendered.” If this is the necessary construction of the words, they state a fact which undeniably was not true. The policy was not surrendered at that or any subsequent time, but remained in the possession of the assured until his death. The words “ which is hereby surrendered,” if given the broad meaning attached to them by the defendant, import a present physical surrender of the policy itself, and this was not done. If that had been intended the transaction was left incomplete. But taking those words in connection with the context, we think the fair and reasonable meaning of the writing was that the policy was surrendered as to the claim, which was the subject of the settlement, so that in respect to the injury of April 8th there should be no further claim against the defendant. It protected the company against
farther liability for that injury, whatever might happen or however much the then existing symptoms might thereafter be aggravated. This construction, moreover, is the only one consistent with the justice of the transaction. The only thing the parties had in view was the settlement of the claim for the injury of April 8th. The terms of the settlement were agreed upon, and nothing had been said about a surrender of the policy. There was no reason why the assured should be required to give up the contract of insurance. The assessments had been paid, which kept the policy in force until June 9th. If meanwhile another injury should happen he would be protected. Nor was there any apparent reason why the company should desire to terminate the insurance. The risk, so far as appears, was a good one. Its only interest was to make a final and complete settlement of the claim for the injury of April 8th. It probably could have successfully resisted the claim as it then stood, under the strict language of the policy, but the agent stated in substance that it was for the interest of the company to be liberal in the adjustment of claims, and this' was a reasonable motive for its action in conceding it's liability. The receipt, as the evidence tends to show, was intended as a mere record of the verbal agreement, and of the payment made by the company. After the oral agreement had been co'usummated the agent produced a printed form, filled in the necessary descriptive particulars, and presented it to the assured for signature, and the assured signed it after the agent explained to him that the surrender of the policy was not important. It may be well, in conclusion, upon this point to repeat the language of the receipt: “ Received from the Manufacturers’ Accident Indemnity Co., of Geneva, N. Y., the sum of twenty-five dollars ($25), being in full satisfaction and final settlement of any and all claim I now have or may have against said company for loss resulting from injuries received on the 8th day of April, A. D. 1889, under my policy No. 12,157, which is hereby surrendered.” The Avords “ which is hereby surrendered,” we hold may and ought to be construed as referring to the claim
describe'! in the context, and to indicate that as to that, and that alone, the rights of the assured, under the policy were surrendered. The rule applied to the construction of a release, that generfi words following words of special release may be restrained to the matter specially recited, confirms the construction we have given to the writing in question.
We think the court did not err to the prejudice of the defendant in charging that if the jury should find that the virulent matter which produced the blood poisoning was communicated to the wound coincident with its infliction, and the death was produced by the blood poisoning, it ivas a death within the policy. The policy provides that the insurance shall not extend “ to any case except where the injury is the proximate and sole cause of the disability or death.” There was evidence upon which the jury could find the fact submitted. There was medical testimony to the effect that the virus was probably on the umbrella^ or whatever instrument it ivas which inflicted the wound; and the condition of the thumb and the bandaging afforded an inference that that was not a source of the virulent infection. All the evidence upon this point was submitted to the jury, including the statement of the assured in the notice of injury, and the jury having found the fact in favor of the plaintiff, the finding cannot now be disturbed. Upon the fact as found, the-inoculation of the wound at the very time of its infliction was a part of the injury. Without the wound there would have been no inoculation, and so, also, Avithout the inoculation the Avound Avould not probably have been fatal. But it is impossible to separate the two in the practical construction of this condition in question. Both were contributing and co-existing causes of the death, set in motion and operating together from the same moment of time. (See
Fitton
v.
Accidental Death Ins. Co.,
17 C. B. [N. S.] 122;
Smith
v.
Accident Ins. Co.,
L. R. [5 Exch.] 302.)
ISTor do Ave think there Avas error in the ruling as to the condition requiring immediate notice to be giAmn to the company
of an accident or injury. The notice given of the second injury, on the 2nd of May, was concededly in time, but it did not contain all the particulars specified in the condition. The company retained the notice and did not call for further particulars. The policy, after prescribing that immediate notice of an injury should be given, and specifying the particulars to be given, proceeds: “And failure to give such immediate notice, mailed within ten days from the happening of such accident, shall invalidate all claims under the certificate.” Where a forfeiture is claimed for a non-observance of a condition in a policy of insurance, requiring some notice to be given, after a loss or liability has been incurred, a clear case must be made, and in case of doubt the condition is most strongly construed against the insurer. Looking at the clause under which the forfeiture is claimed in this case, it is evident that it was primarily intended to protect the company against delayed claims for indemnity, of which prompt notice had not been given. It is upon a failure to give such “ immediate notice, mailed within ten days,” that the forfeiture was to accrue. It would be a very harsh and unreasonable construction to apply this clause to every imperfection in a notice, ivliich, although promptly given, omitted to state some particular embraced among those enumerated in the prior clause. We think the forfeiture clause did not apply to a case of such omission. The company could have demanded further particulars, but having omitted to do so, it waived any objection to the form or contents of the notice. The same view is applicable to the death notice. It was promptly given and was retained without objection.
We have examined the other questions argued upon the brief of the appellant, but find nothing in them which would justify a reversal of the judgment.
The judgment should be affirmed.
All concur, except Martin, J., not sitting.
Judgment affirmed.