Franklin Insurance v. Staib

1 Walk. 361

Opinion

The Supreme Court affirmed the decision of the Court below on November 9th, 1874, in the following opinion,

Per Curiam:

It is unnecessary to decide whether the application was by reference made a part of the policy in this case. Neither the declaration nor the affidavit of claim referred to it, while the defendants neither by craving oyer, nor by notice, made it incumbent on the plaintiff to call for or produce it.

This, it is true, did not preclude the defendant from producing and relying upon it, as a warranty and defence in the action. But under the pleadings, the policy was evidence to go to the fury, as prima facie evidence on the plaintiff’s case. The bill of exceptions to the policy as it stood, failing, the other questions in the cause, do not necessarily arise in the record as presented to us.

Judgment affirmed.