Holden v. Metropolitan Life Insurance

74 N.E. 337, 188 Mass. 212, 1905 Mass. LEXIS 1125

• Court: Massachusetts Supreme Judicial Court
• Decided: May 19, 1905
• Status: Published

Opinion

Hammond, J.

The policy having lapsed, the insured, desiring to have it revived, made an application for that purpose, and upon that application it was revived. In, this application there was a warranty that the insured had not been rejected by other insurance companies.

At the trial the defendant showed by uncontradicted evidence that the insured, previous to taking out the policy, had been rejected by other insurance companies; and it contended, among other things, that the warranty had been broken and consequently that the contract of revival was void. To this, so far as respected the application for revival, the plaintiff contended that this application should have been attached to the policy, and that not having been so attached, it could not be admitted in evidence, nor could the evidence of the breach of warranty be admitted. The judge admitted the application and the evidence as to the breach of warranty, ruled that “ the application for revival is not itself a policy of insurance ” and that inasmuch as the uncontradicted evidence showed “ that prior to the application for revival the assured had been rejected for insurance in other life insurance companies, . . . the warranties contained in the revival were therefore violated, and the revival did not take effect”; and having so ruled, directed a verdict for the defendant.

Although not stated with much precision, the ruling of the judge in substance was that K,. L. c. 118, § 73, did not require a copy of the revival application to be annexed to the policy. We are of opinion that the ruling was correct.

That section provides that “ Every policy which contains a reference to the application of the insured, either as a part of the policy or as having any bearing thereon, must have attached thereto a correct copy of the application, and unless so attached the same shall not be considered a part of the policy or received in evidence.”

An inspection of this policy shows that it does not contain a reference to the application of the insured, either as a part of the policy or as having any bearing thereon. It is true that there is a statement upon the policy that having lapsed it is revived upon certain warranties contained in the revival application, but this relates simply to the terms of the revival, and not to- the terms of the original policy. The terms of the policy as such remain as before. The language of the statute plainly has reference to an application upon which the original policy is issued, and not to any contract of revival. This view of the statute is further confirmed by the next clause in the same section, which provides that “ each application for such policy shall have printed upon it in large bold-faced type the following words: ‘ Under the laws of Massachusetts, each applicant for a policy of insurance to be issued hereunder is entitled to be furnished with a copy of this application attached to any policy issued thereon.’ ” The defendant does not seek to avoid the policy for any violation of its provisions, but seeks to avoid the contract of revival upon the ground that it was void from the beginning, and the policy never was in law revived.

Since the policy had lapsed and the revival was void, the judge rightly ordered a verdict for the defendant.

-Exceptions overruled.