Bidwell v. Connecticut Mut. Life Ins.

3 F. Cas. 338 | U.S. Circuit Court for the District of California | 1874

SAWYER, Circuit Judge.

Action upon a life insurance policy. The complaint contains a copy of the policy, but does not set out, either in haec verba or in substance, the “proposals, answers and declarations” made by the applicant upon which the policy was issued. The policy set out contains the following clause: “And it is also understood and agreed to be the true intent and meaning hereof, that if the proposals, answers and declarations made by the said Alanson C. Bidwell, and bearing date the fifteenth day of November, 1866, and which are hereby made part and parcel of this policy as fully as if herein recited, and upon the faith of which this agreement is made, shall be fouml in any respect untrue, then and in such case this policy shall be null and void.” The defendant demurs, on the ground that the complaint is uncertain and insufficient, it appearing upon its face that the entire contract is not set out. I think this point well taken. It is well settled that under the provision of the policy cited, the proposals, etc., are not mere representations made as inducement to enter into a contract, but are warranties and a part of the contract itself. Miles v. Connecticut Mut. Life Ins. Co., 3 Gray, 580; 1 Bigelow, 173; Ryan v. World Mut. Life Ins. Co., 4 Ins. Law J. 37: Campbell v. New England Mut. Life Ins. Co., 98 Mass. 381; Tebbetts v. Hamilton Home Mut Ins. Co., 1 Allen, 305; McLoon v. Commercial Mut. Ins. Co., 100 Mass. 472; Kelsey v. Universal Life Ins. Co., 35 Conn. 235; Miller v. Mutual Ben. Life Ins. Co., 31 Iowa, 227; Lycoming Mut. Ins. Co. v. Saile, 67 Pa. St. 108; Rogers v. Charter Oak Life Ins. Co., Sup. Ct. Conn., [41 Conn. 97.] The application being a part of the contract, it is necessary to set it out in the complaint; otherwise it does not appear what the contract is. Bobbitt v. Liverpool & L. & G. Ins. Co., 66 N. C. 70; Steph. Pl. 132; Gould, Pl. c. 4, § 28; 1 Chit. Pl. 236.

The demurrer must be sustained, and it is so ordered.

[A substantially similar question has arisen in several cases as to the necessity of the insured to introduce the application in evidence; and it has been held in Mutual Ben. Life Ins. Co. v. Robertson. 59 Ill. 123, and Suppiger v. Covenant Mut. Ben. Ass’n, 20 Bradw. 595, that it is unnecessary, and in Pennsylvania Mut. Aid Soc. v. Corley, 2 Penny. 398, that a policy, referring to an application as part of it, is inadmissible in evidence, without either producing the application or accounting for it.]