Lead Opinion
delivered the opinion of the Court.
Rеspondent sued in the municipal court of the District of Columbia to recover the amount of an insurance policy issued by petitioner December 12, 1927, on the life of her husband, who died May 22, 1929. The policy was delivered to the insured and all premiums were paid in the District of Columbia where he lived. Adequate proof of death, plaintiff’s demand for payment and defendant’s refusal to pay were conceded. The policy contained these provisions: “ This Policy constitutes the entire agreement betwеen the Company and the Insured and the holder and owner hereof. ... If the Insured ... is not in sound health on the date hereof . . . the Company may declare this Policy void . . Sectiоn 657 of the District Code (Act of March 3, 1901, 31 Stat. 1294, as .amended by Act of June 30, 1902, 32 Stat. 534) provides: “ Each life insurance company, benefit order and association doing a life insurance business in the District of Columbia shall deliver with each policy issued by it a copy of the application made by the insured so that the whole contract may apрear in said application and policy, in default of which no defense shall be allowed to such policy on account of anything contained in, or omitted frоm, such application.” The company did not deliver with the policy or otherwise a copy of an application therefor. Indeed, there was no evidеnce that any had been made. Defendant offered evidence to show that, at the date of the issue of the policy, the insured was not in sound health. Plaintiff objectеd on the ground that no copy of the application
The sole question is whether § 657 was rightly construed.
The Court of Appeals assumed as a matter of common knowlеdge that life insurance polices are issued on written applications and that in this case one had been made by the insured. Without deciding whether that assumption is warranted, we shall consider the case as if it were shown that the assured applied in writing for the insurance in question. In the absence of a statute forbidding it, contracts of insuranсe may be made orally. Relief Fire Ins. Co. v. Shaw,
Here the policy definitely dеclares that it constitutes the entire agreement between the parties. The defense interposed is based solely on one of its provisions and has no relation to the application. The section does not require written applications to be made or declare that, where one is made but not delivered with the policy, there shall be no defense based on the provisions of the policy itself. And no reason is suggested in support of a construction of the section that would рrevent defense based on a provision of the policy even though a similar or the same provision were contained in an application. As this policy еxpressed the entire agreement defendant, notwithstanding its failure to deliver a copy of the application, was entitled to interpose such defenses- as wоuld have been open to it if no application had been made. MacKinnon & Co. v. Mut. Fire Ins. Co.,
Judgment reversed.
Notes
MacKinnon & Co. v. Mut. Fire Ins. Co.,
Dissenting Opinion
dissenting.
If an insurance policy is issued on written application and the company fails to deliver a copy of it tо the in
I think it should be dismissed. The certiorari was granted upon a petition which set forth as grоunds for its allowance that the court below, in construing the prohibition of the statute, had “ decided erroneously a question of general importance ” and that the decision “ is in conflict with all decisions in other jurisdictions involving similar statutes and therefore tends to unsettle the law.” Upon the briefs and the argument the statutes of many states were quoted, prescribing the legal consequences of the failure of the insurer to deliver to the insured, with the policy, a copy of the written application. Most of them provide only that in such cases the application is not to be considered a part of the policy or received in evidence in a suit brought upon it. Nonе contain language like that of the present statute prohibiting any defense on the policy “on account of anything contained in or omitted from ” the application, and we have been cited to no decision of any court outside the District of Columbia in which that language or any resembling it has been considered.
It thus appears that the construction of the statute which we were asked to review is not in the case, and even if it were, it is of local significance only. The conflict of
If the writ is not to be dismissed and the case is to be decided on the construction of the statute, the Court's reversal of the judgment, in the absence of the application which, for purposes of decision, it assumes to exist, can only proceed on the ground that under no сircumstances could a defense based on a clause in the policy itself be said to be one “ on account of anything contained in or omitted from the aрplication.” With that conclusion I am unable to agree. The defense here was that the insured was not in sound health at the date of the policy. Petitioner sought to establish it by showing that the state of health of the insured, then deceased, had been bad for several years before the policy was issued. If the written application wеre before the Court and revealed that the insured had been asked about his condition of health and had either answered fully and truthfully, or not at all, it would show, I think, that the defensе, within the very meaning and purpose of the statute, was “ on account ” of something “ contained in or omitted from the application,” and that the petitioner was precluded from making it.