#### The Fidelity *&*Casualty Co. of New York *v.*The Hartzell Bros. Co.

*Insurance*— Burglary—Limitation *of liability for silk*articles— *Evidence inadmissible to contradict or interpret policy.*

For the purpose of limiting liability, a policy of insurance contained a provision that its issuer should not be liable for any loss whatever on silks or articles made entirely or principally of that material. *Held:*That such provision is plain and unambiguous and that a loss of silk shirts was not covered under the policy; nor was parol evidence admissible to contradict such provision or to prove that the parties so interpreted It as to give coverage for silk shirts.

(No. 17984

Decided March 18, 1924.)

Error to the Court of Appeals of Mahoning county.

On December '20, 1919, the plaintiff in error issued to the defendant in error a policy of insurance against burglary, covering a stock of goods which included clothing and gents’ furnishings. The policy contained the following clauses:

“No. 18. No change whatsoever in this policy nor waiver of any of its provisions shall be valid unless made in writing and signed by one of the said executive officers and indorsed hereon or added hereto; nor shall notice to any agent or knowledge possessed by any agent or by any other person be held to effect a waiver or change in this policy or in any part of it unless reduced to writing, signed as specified above, and indorsed hereon.

“No. 19(a). In amount of $8,000 to money and *567securities, and to the property hereinbefore defined provided that the company shall not be liable for any loss whatsoever on silks, furs, linen laces, silk laces, hand embroideries, feathers, silk velvets, or velours, or articles made entirely or principally of any of the said materials.”

In April,- 1920, a burglary occurred, resulting in a loss of sundry goods, including 143 silk shirts of the value of $1,275.17. Suit was brought against the insurance company. The insurance company admitted liability for' a part of the stolen goods, but under the above provisions of its policy denied liability for the value of the silk shirts. A jury was waived and the cause tried to the court, which, stating its findings of fact and conclusions of law separately, rendered judgment in favor of the defendant in error for $1,492.57, the amount claimed. That judgment was affirmed by the Court of Appeals. Whereupon error was prosecuted to this court.

*Messrs. Nicholson & Warnock,*for plaintiff in error.

*Mr. H. P. McCoy*and *Mr. Theodore A. Johnson,*for defendant in error.

Jones, J.

In order to escape the effect of the provisions of the policy, the assured relied upon allegations and proof of estoppel, and the trial court found in its favor on that ground. Parol evidence was offered, over the objection of the defendant, tending to prove that plaintiff refused to accept the policy until it was assured that the loss of silk shirts was covered by the terms of the *568policy; that this assurance as to coverage and liability was made by a local agent upon the instructions of another agent who was resident manager for northern Ohio. The court found that the latter “represented to plaintiff that said clause 19 (a) would not be interpreted so as to exclude silk shirts and ties from the protection of said policy of insurance and that plaintiff relied on same.”

While testimony was offered tending to prove that a larger premium was charged for a coverage upon silk shirts, the court found that plaintiff was not advised of such different rate, hut believed that it was paying the full premium sum charged to obtain coverage therefor. The trial court therefore held that the insurance company was estopped from denying liability, and gave judgment for the value of the silk shirts.

The terms of the contract are plain and unambiguous. It distinctly provides that the company should not be liable for any loss whatever on silks or articles made entirely or principally of that material. It is not claimed by plaintiff that the stolen goods were not in fact composed of silk, or that the silk shirts were not made principally of that material. The claim advanced is that the parties to the contract interpreted it otherwise, and parol evidence was offered to sustain that interpretation. If these provisions were ambiguous, evidence offered, to clear the ambiguity would have been relevant; however, when the terms of an insurance policy are plain and unambiguous, parol evidence is not admissible to contradict them. “Policies of insurance should be construed, like other contracts, so as to give effect to the intention and express lan*569guage of the parties.” *Travelers’ Ins. Co.*v. *Myers & Co.,*62 Ohio St., 529, 57 N. E., 458, 49 L. R. A., 760. “But the rule is equally well settled that contracts of insurance, like other contracts, are to be construed according to the sense and meaning of the terms which the parties have used, and if they are clear and unambiguous, their terms are to be taken and understood in their plain, ordinary, and popular sense.” 14 Ruling Case Law, 931. “If the terms of the contract are express, the court cannot extend or enlarge the contract by implication so as to embrace an object distinct from that originally contemplated.” Joyce on Insurance, Section 219.

This court cannot make a new contract for the parties where they themselves have employed express and unambiguous terms. In the construction of contracts the language employed must be given its usual and ordinary meaning, and, measured by this rule, this policy clearly excluded from its provisions shirts that were entirely silk or principally made of that material. If, through fraud or mistake, the policy did not embody the actual contract mutually entered into between the parties, a court of equity would have power to reform it. Had the action been one for such reformation, with a view to having the written policy cover silk shirts, under an agreed stipulation, the question of the agent’s authority to agree thereto, under clause 18 of the policy, might be judicially determined. But, where the issue made is what interpretation should be given a provision in the policy which we hold to be unambiguous, such unambiguous provision *570controls, whether agreed to by the company or an authorized agent.

Entertaining these views, this court is of the opinion that the judgments of the lower courts should be reversed and the cause remanded to the trial court for further proceedings according to law.

*Judgment reversed.*

Marshall, C. J., Robinson, Matthias, Day and Allen, JJ., concur.

Wanamaker, J., not participating.