Moriarty v. Metropolitan Life Ins. Co.

• Decision Date: 19 April 1918
• Parties: Moriarty v. Metropolitan Life Insurance Company.
• Court: Kentucky Court of Appeals

180 Ky. 207

Moriarty v. Metropolitan Life Insurance Company.

Court of Appeals of Kentucky.

Decided April 19, 1918.

Appeal from Jefferson Circuit Court (Common Pleas Branch, Fourth Division).

PRYOR & CASTLEMAN, D. R. CASTLEMAN and THOMAS WALSH for appellant.

BRUCE & BULLITT and CLARENCE C. SMITH for appellee.

OPINION OF THE COURT BY WILLIAM ROGERS CLAY, COMMISSIONER — 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, C, 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 Declaration." Only parts A and B were attached to the policy and counsel for plaintiff argues that as the application and the report of the examining physician were all on one paper, the copy of the application attached to the policy was not correct.

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 by 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 arise where the medical examination itself is signed by the applicant or is embraced in the application signed by the applicant, in which event a copy of the medical examination should be attached to the policy. Southern States Mutual Life Insurance Company v. Herlihy, supra; Ames v. The Manhattan Life Insurance Company, 52 N. Y. Supp. 759; Paulhamus v. Security Life and Annuity Company, 163 Fed. 554. There is a distinction, however, between the medical examination signed by the applicant and the independent report not signed by the applicant, but signed alone by the examining physician and based on statements for which the applicant was in nowise responsible. In such a case the report is not a part of the application "as signed by the applicant," even though it appears on the reverse side of the application, and its omission from the copy of the application attached to the policy will not have the effect of rendering such copy inadmissible in the evidence. Nugent v. The Greenfield Life Assn. (Mass.), 52 N. E. 440; Bonville v. John Hancock Mutual Life Insurance Company (Mass.), 85 N. E. 1057; Johnson v. Des Moines Life Assn. (Iowa), 75 N. W. 101.

(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...