Dailey v. Preferred Masonic Mut. Acc. Ass'n of America
| Decision Date | 16 October 1894 |
| Citation | 60 N.W. 694,102 Mich. 289 |
| Parties | DAILEY v. PREFERRED MASONIC MUT. ACC. ASS'N OF AMERICA. |
| Court | Michigan Supreme Court |
On rehearing. Granted.
For former opinion, see 57 N.W. 184.
A rehearing was granted in this case on account of the doubt we entertained, when the motion for a rehearing was made, as to the correctness of the holding that the suit could not be maintained upon the policy of insurance, but should have been brought upon the contract effected by the application and acceptance of the defendant indorsed thereon. This question was not fully presented upon the former argument, and we are satisfied now that that ruling was erroneous. The policy expressly referred to the application, and made it a part of the contract of insurance. In such cases the two instruments must be construed together, in determining what the real contract is. Chrisman v. Insurance Co. (Or.) 18 P. 466; Rogers v. Insurance Co. (Iowa) 34 N.W. 202. When the policy, as delivered, contains provisions not in the application, and which are not accepted by the applicant, they may be treated as waived by the company, and constituting no part of the insurance contract. We held in the former opinion that the provision of the policy prohibiting the decedent from getting on and off a railroad train while in motion was inoperative, and did not affect the validity of the insurance. He had not accepted this provision, nor assented to it. The former opinion upon this point is therefore overruled, and the judgment is now affirmed.
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