Washington Fidelity Nat. Ins. Co. v. Burton, 5264.

• Decision Date: 25 January 1932
• Docket Number: No. 5264.,5264.
• Citation: 56 F.2d 300
• Parties: WASHINGTON FIDELITY NAT. INS. CO. v. BURTON.
• Court: U.S. Court of Appeals — District of Columbia Circuit

56 F.2d 300 (1932)

WASHINGTON FIDELITY NAT. INS. CO. v. BURTON.

No. 5264.

Court of Appeals of District of Columbia.

Argued December 11, 1931.

Decided January 25, 1932.

Walter C. Clephane, J. Wilmer Latimer, and Gilbert L. Hall, all of Washington, D. C., for plaintiff in error.

W. Gwynn Gardiner and George A. Maddox, both of Washington, D. C., for defendant in error.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.

HITZ, Associate Justice.

This case is here upon writ of error to the Municipal Court of the District of Columbia.

Defendant in error was plaintiff there in an action against plaintiff in error, defendant there, upon a policy of insurance for $372, issued on the life of her late husband Cady Burton, who died in this District, May 22, 1929.

The policy was dated December 12, 1927, and plaintiff was the beneficiary designated therein.

The defense offered was that the insured was not in sound health at the date of the policy, and therefore that the company could, as therein provided, declare the policy void.

The trial court refused to hear any evidence to maintain that defense because no copy of the application for insurance had been delivered with the policy as provided by section 657, Code, D. C. (now title 5, § 183, page 20), reading as follows: "Copy of application to be delivered with policy. — 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 appear 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 from, such application. (Mar. 3, 1901, 31 Stat. 1294, c. 854, § 657; June 30, 1902, 32 Stat. 534, c. 1329.)"

Defendant contended its defense was not precluded by that section because its policy provided, "This policy constitutes the entire agreement between the company and the insured the holder and owner hereof."

And that it was not defending on the application or anything contained therein.

But if it was not defending on the application, as such, it was defending on something contained in or omitted from the application.

The section of the policy on which it relied to avoid its obligation read: "If (1) the insured is not alive, or is not in sound health on the date hereof; or if * * * the insured * * * has, within...