CONVERSE v. KNIGHTS TEMPLARS' & MASONS' LIFE INDEMNITY CO., 93 F. 148

WOODS, Circuit Judge, after making the foregoing statement, delivered the opinion of the court.

The clause of the policy on which, presumably, the special pleas were intended to be predicated, contains two restrictions; one upon residence and travel, expressed in permissive words, and the other a prohibition “to pass beyond or be without the foregoing limits.” The first of these pleas has reference to residence alone, and not only was not established, but was disproved; it being clear upon the evidence that the residence of Converse, from the time of his removal from Michigan to the date of his death, was at Wellman, and was not affected in the legal sense, or in the sense of the policy, by his temporary absence during the few days before and at the time of his death.

The second plea is equivocal, and does not disclose with certainty upon what theory it was intended to be drawn. The substance of it is that for more than 10 days the assured “did remain, etc., in the city of New Orleans, and while then and there so remaining, etc., and not while his residence was within the pine regions, etc., did die.” Fairly construed, this means that at the time of his death Converse was, and for more than 10 days had been, a resident, not of the pine regions of Mississippi, but of New Orleans.

A part of the allegation being untrue, perhaps the whole should fall; but, even if the negative clause concerning residence in' the pine regions of Mississippi be regarded as separable, .and be rejected as irrelevant, or as contrary to the evidence, and if it.be conceded, as alleged, that the deceased “remained” in New Orleans for more than 10 days, and while so remaining died, it does not follow that lie was not there in strict accordance with the permission given him “to pass as a passenger by the usual routes of public conveyance.” That clause, like other terms of the policy; when construed strictly against the company, as it should be, and liberally in favor of the assured, gave him the privilege of going as passengers or travelers are accustomed to do.

He was not bound to be in constant conveyance on (lie line of his journey from the start to the end; but, like a traveler, lie was entitled to reasonable stops on the way, for whatever reasonable purpose consistent with the character of a traveler, though not entitled, perhaps, to become what would be called a “sojourner”; and if, by reason of sickness, he was compelled to interrupt his journey, it is not to be said on that account that his policy became void.

There could certainly be no injustice in applying (lie strict rule of construction to pleas like these, designed to present a defense which has no merit beyond the mere letter of the supposed contract, the breach of which it is not pretended had the remotest relation to the health or death of the insured. Such an insistence upon the technical meaning of the contract might well be met by a like insistence upon the technical rule of pleading; but we prefer to decide the case upon its merits as disclosed by the evidence.

Assuming the pleas to be sufficient to present the issue intended, we are of opinion that, upon a proper construction of the policy, the defense was not established.

If, for the sake of clearness, only the provisions touching residence and the right to go and come in the United States be regarded, permission is given to reside in the settled portions north of the thirty-second parallel of latitude at all seasons of the year, and south of that parallel at all times except from the 1st day of July to the 1st day of November in each year, and to “pass, as a passenger, by the usual routes of public conveyance, to and from any port or place within the foregoing limits; but, if he shall * * pass beyond or be without the foregoing limits, * * this policy shall become null and void.” The question is, what is the scope of the right given “to pass * * * to and from any port or place within the foregoing limits”?

The answer to the question depends mainly upon the force of the words “the foregoing limits,” as used in that clause. The contention of the defendant in error is, and it seems to have been the view of the court below, that the words imply a limitation of time as well as of territory.

According to the court’s charge to the jury, the assured was forbidden to go “beyond the limits of prescribed residence,” except that, under the permission to travel, he might go “from one port or place to any other port or place within the allowed territory, although the route might take him out of the prescribed limits.” That is to say, the words, “the foregoing limits,” as if followed by the word “respectively,” are to be applied distributively to each distinct region of residence for the time during which residence therein is permitted, and not to the entire region of residence as a whole, and without regard to the implied inhibition against residence in particular locations at particular seasons.

Following that construction, the court held that, while the journey from Wellman by way of New Orleans to Long Beach was passage by a usual route from one place of permitted residence to another, the going from Long Beach to New Orleans, and returning to Long Beach again on July 31st, no matter for what purpose, was “a breach of the conditions of the policy”; that is to say, of the prohibition to “pass beyond or be without the foregoing limits.” On that

interpretation, if Converse, after availing himself of the time between trains at New Orleans to see his physician, had gone on to Wellman, or to any other place of permitted residence except Long Beach, from which he started, and thence had returned immediately to Long Beach, though by way of New Orleans for the purpose of seeing his physician again, it would have been only what he was permitted to do.

To state it in another way: ' If the journey of July 31st had been begun with the intention of going to Wellman, but, on arrival at New Orleans, it had been found necessary or desirable for any reason to return immediately to Long Beach, it could not have been done, consistently with the terms of the policy, without first going from New Orleans to some other place of permitted residence. Besides such incongruities, this construction involves contradiction in the terms of the particular provision of the policy under consideration.

In one clause the right is given to pass from one place to another, “within the foregoing limits,” and in the next clause it is said that to “pass beyond or be without the foregoing limits” will nullify the contract. If, according to the first clause, a right of travel may lie without or beyond “the foregoing limits,” it cannot be reconciled with the equally explicit inhibition of the second clause against passing beyond or being without those limits.

There is no such inconsistency in the terms of expression, — one clause permitting travel within, and the other forbidding the passing or being beyond the intended limits; and they can be made irreconcilable only by attributing to the words “the foregoing limits,” as first used, one meaning at one time and another meaning at another time, according to the limitations prescribed for residence.

If, on the contrary, those words be treated as having one and the same meaning with reference to all seasons, and as embracing as a unit all regions in which residence at any season is permitted in both hemispheres, the entire provision becomes harmonious and reasonable.

The right given to travel in or through any region where residence is permitted for any part of the year, and from any port or place in one of those regions to another by the usual routes of conveyance, is not limited to any part of the year; and the prohibition of the next clause is against going or being outside of the limits of residence and of travel, as defined in the preceding clause. As employed in the second clause, the words “the foregoing' limits” evidently have a wider scope than the same words in the preceding clause.

Besides the regions of permitted residence, they include the usual routes of travel to and from ports and places in those regions.

The meaning, therefore, is that if the assured shall pass beyond or be without the regions in which residence is permitted, except to go, as a passenger, by the usual lines of conveyance between ports or places within those regions, the policy shall be void; and perhaps it is to be inferred, though it is not explicitly stated, that if he shall be in a specified region of residence, but at a time when residence there is not permitted, except it be to “pass, as a passenger,” upon a usual route of travel, the policy shall become void.

If any such inference against the assured is allowable, that would seem to be the utmost scope of it. It was, therefore, a violation of no condition of tlie policy that the assured went from Long Beach to New Orleans, and back to Long Beach again, on the 31st day of July, 1894, nor that, on arrival at New Orleans on August 6th, he was compelled to interrupt his journey homeward, and to go to the house of a friend to die, unless, according to the fair meaning of the policy, construed liberally in favor of the assured, he by so stopping ceased to be a passenger and became a resident.

As already indicated, our opinion is that, to be a passenger or traveler on a journey, by a route of public conveyance, one need not be on the constant go. He may not stay on his way so long, and under such circumstances, as to become a sojourner; but he has the right to stop, as a passenger or traveler is to be expected to do, for any purpose of business, health, or pleasure, — and especially when sickness makes it necessary.

Whether, in this instance, the interruption of the journey was improper, was, in the view most favorable to the defendant in error, a question of fact, or of mixed law and fact, to be submitted to the jury upon proper instructions. Many decided cases have been cited, to some of which reference was made by the court below; but, upon our view of the proper construction of the policy, they are not relevant, -and need not be reviewed.

The point decided being that the evidence in the record does not show conclusively that there had been a broach of any condition of' the policy, the question does not arise whether a conceded or established breach, for which by its terms the policy is to become void, may be excused because produced by

an act of God or other like cause. The judgment below is reversed, and the cause remanded with direction to grant a new trial.