Reynolds v. Atlas Acc. Ins. Co. of Bos.

Citation71 N.W. 831,69 Minn. 93
PartiesREYNOLDS v ATLAS ACC. INS. CO. OF BOSTON.
Decision Date23 June 1897
CourtSupreme Court of Minnesota (US)

OPINION TEXT STARTS HERE

(Syllabus by the Court.)

1. An accident insurance policy provided that, “in consideration of the warranties and agreements contained in the application indorsed hereon,” the company accepted him as a member, “subject to all the conditions indorsed hereon.” One of the conditions indorsed on the policy was that “the application for membership is made a part of this contract, and printed thereon.” Held, that attaching a copy of the application to the back of the policy with mucilage or some similar substance, and delivering the same to the insured, constituted an “indorsement” of the application upon the policy, within the meaning of the contract.

2. The answer to a question required to be answered categorically was indistinctly written in the original application, appearing to consist of the letter “n” and a part of the letter “o,” but in the copy attached to the policy and delivered to the insured the answer was clearly and distinctly written “No.” The insured retained this for over three years, and until his death, without objection, and without suggestion that it did not correctly state his answer to the question. Held, that there was no error in refusing to submit to the jury the question what the answer actually was; that, even if the answer as written in the original application was illegible, the insured, by retaining the copy of the application attached to the policy without objection, must be held to have approved of it, and accepted it as containing his answer to the question.

Appeal from district court, Hennepin county; Charles B. Elliott, Judge.

Action by Eva T. Reynolds against the Atlas Accident Insurance Company of Boston. From an order dismissing the action, plaintiff appeals. Affirmed.

Morse & Sweetser, for appellant.

Smith & Parsons, for respondent.

MITCHELL, J.

In April, 1893, the defendant issued to George L. Reynolds an accident insurance policy, whereby, “in consideration of the warranties and agreements contained in the application indorsed hereon,” it accepted him as a member of the company, “and subject both to the conditions, agreements, and limitations herein contained, and to all conditions indorsed hereon,” insured him against the effects of bodily injuries caused solely by external violent and accidental means in various sums, according to the nature and extent of the injury, in case it did not result in death; but “if such injury alone shall result in the death of the insured, within ninety days thereafter the company will pay $5,000 to Eva T. Reynolds, his wife, if surviving.” Among the conditions printed on the back of the policy were the following: “The application for membership is made a part of this contract, and printed thereon. Fraud or concealment in obtaining membership *** shall make this contract and insurance void. The provisions and conditions aforesaid *** are conditions precedent to the insurance hereof, and to its validity and enforcement.” Reynolds' application for membership, signed by him, stated that: “Membership to be based upon the following statement of facts, which are warranted by me to be true and complete.” This application was all printed, except Reynolds' answers to the questions propounded to him, and his signature. It contained 17 questions to be answered by the applicant, 5 of which required categorical answers of “Yes” or “No.” The sixteenth question was, “Have you ever had paralysis, or fits of any kind, or are you subject to or affected by any bodily or mental infirmity, or have you suffered the loss of a limb?” It appeared that the answers were all in the handwriting of an agent of the defendant who took Reynolds' application, but who had no personal recollection of the transaction at the time of the trial. The answers to the questions requiring categorical answers, including the sixteenth, were indistinctly written, all of them appearing to consist of the letter “n” followed by a part of the letter “o.” None of them had any resemblance to the word “Yes,” and, as suggested by the trial judge, we think “an inspection of the application would satisfy any disinterested person that there was no ambiguity as to the answer to the inquiry about fits,”-that it was clearly intended for the word “No,” although indistinctlywritten. This application was forwarded to...

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