180 Ky. 207 | Ky. Ct. App. | 1918
Opinion of the Court by
Affirming.
On November 19, 1913, the Metropolitan Life Insurance Company issued to Daniel Moriarty, a policy by which it insured his life in favor of his mother, Mary Moriarty, in the sum of $500.00. The insured died while' the policy was in force, and the company having denied liability, the beneficiary brought this suit to recover on the policy. At the conclusion of the evidence, the court directed a verdict in favor of the defendant, and plaintiff appeals.
(1) The first ground urged for a reversal is that a correct copy of the application was not attached to the policy, and that, therefore, the application should not have been admitted in evidence. It appears that the application consisted of five parts marked A, B, O, D, E, and the report of inspection. Parts A and B appear on page one, which is headed, “Application to the Metropolitan Life Insurance Company to be Signed by the Applicant for Insurance and Proposed Beneficiary.” Parts C, D and E and the report of inspection appear on the reverse side of the page. This page is headed, “Report of Examining Physician — No part of Applicant’s Declar
The material part of section 679, Kentucky Statutes, 1909, which was in force when the policy was issued, is as follows:
■ “All policies or certificates hereafter issued to persons within the Commonwealth hy corporations transacting business therein under this law, which policies or certificates contain any reference to the application of the insured, or the constitution, by-laws or other rules of the corporation, either as forming part of the policy or contract between the parties thereto or having any bearing on said contract, shall contain or have attached to said policy or certificate a correct copy of the application as signed by the applicant, and the portion of the constitution, by-laws or other rules referred to; and unless so attached and accompanying the policy, no such application, constitution, by-laws or other rules shall be received as evidence in any controversy between the parties to or interested in said policy or certificate, and shall not be considered a part of the policy or of the contract between such parties. The said policy or certificate, application, constitution, by-laws or other rules shall be plainly printed, and no portion thereof shall be in type smaller than brevier.”
The purpose of this provision is to furnish both of the parties a copy of the entire contract between them. Hence when the application is attached to, or made a part of, the policy, both the insured and his beneficiary are apprised of the precise representations which the insured made in order to obtain the insurance, and may rest secure in the knowledge that the company may not defeat the policy by proof of any other representations than those contained in the policy and application. Southern States Mutual Life Insurance Company v. Herlihy, 138 Ky. 359, 128 S. W. 91. Furthermore the application referred to in the statute is “that signed by the applicant.” Here the only application signed by the applicant was parts A and B. The report of the examining' physician did- not appear in these parts, but in parts C, D and E and the report of inspection on the reverse side of the page. Cases may
(2) It it next insisted that the court erred in holding that the insured made any fraudulent representations in the application. For the purpose of deciding this question, it will not be necessary to set out all the fraudulent representations relied on. In part B is the following provision :
“To induce the Metropolitan Life Insurance Company to issue policy, and as consideration therefor, I agree on behalf of myself and of any other person who shall have or claim interest in any policy issued under this application, as follows:
“Wherever nothing is written in the following paragraphs it is agreed that.the declaration is true without exception.
“I have never had any of the following diseases: apoplexy, appendicitis, asthma, bronchitis, cancer or other tumor, consumption, . . . except-.”
Following this paragraph nothing’ was written. The uncontradicted evidence shows that the insured had been a patient in several tuberculosis sanitariums and had been treated by numerous physicians for tuberculosis. It further shows that he had, and knew that he had, tuberculosis at the time the application was signed.
(3) Lastly, it is insisted that because Dr. Prather testified that the insured signed the application without reading it, the court -erred in holding that the insured was bound by the representation contained in the application. According to Dr. Prather’s evidence, he read the application to the insured and correctly recorded the exceptions and declarations made by the insured. He then handed the application to the insured and the in
Judgment affirmed.