Section 657 of the Code of the District of Columbia, as amended,
provides that each life insurance company doing business in the
District 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 the 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." Held:
that where the policy declared that it constituted the entire
agreement, the fact that no application was delivered with it did
not preclude a defense based upon a provision of the policy
avoiding it if the insured was not in sound health at the time of
issue. P. 287 U. S.
56 F.2d 300 reversed.
Certiorari, 286 U.S. 536, to review the affirmance of a judgment
in an action on a life insurance policy.
Page 287 U. S. 98
MR. JUSTICE BUTLER delivered the opinion of the Court.
Respondent sued in the municipal court of the District of
Columbia to recover the amount of an insurance policy issued by
petitioner December 12, 1927, on the life of her husband, who died
May 22, 1929. The policy was delivered to the insured, and all
premiums were paid in the District of Columbia, where he lived.
Adequate proof of death, plaintiff's demand for payment, and
defendant's refusal to pay were conceded. The policy contained
"This Policy constitutes the entire agreement between the
Company and the Insured and the holder and owner hereof. . . . If
the Insured . . . is not in sound health on the date hereof . . . ,
the Company may declare this Policy void. . . ."
Section 657 of the District Code (Act of March 3, 1901, 31 Stat.
1294, as amended by Act of June 30, 1902, 32 Stat. 534)
"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."
The company did not deliver with the policy or otherwise a copy
of an application therefor. Indeed, there was no evidence that any
had been made. Defendant offered evidence to show that, at the date
of the issue of the policy, the insured was not in sound health.
Plaintiff objected on the ground that no copy of the
Page 287 U. S. 99
was delivered with the policy. The court, relying on the
statute, sustained the objection and refused to permit defendant to
interpose that defense and gave judgment for plaintiff. The Court
of Appeals affirmed. 56 F.2d 300.
The sole question is whether § 657 was rightly construed.
The Court of Appeals assumed as a matter of common knowledge
that life insurance policies are issued on written applications,
and that, in this case, one had been made by the insured. Without
deciding whether that assumption is warranted, we shall consider
the case as if it were shown that the assured applied in writing
for the insurance in question. In the absence of a statute
forbidding it, contracts of insurance may be made orally.
Relief Fire Ins. Co. v. Shaw, 94 U. S.
. There is no such prohibition in the District of
Columbia. In § 657 the word "policy" and the phrase "a copy of the
application" plainly indicate that writings are meant (Trustees
of the First Baptist Church v. Brooklyn Fire Ins. Co.,
305, 308), and that the statute does not extend to oral
applications. The construction generally put upon enactments like
the one before us indicates that the principal, if not the only,
purpose is that, if there be an application, a copy of it shall be
attached to or otherwise delivered with the policy, so that the
documents showing the entire agreement shall be made available to
the insured. *
That serves to
guard the insured against misunderstanding as to his contract, and,
in case of controversy with the company, to protect him against
Page 287 U. S. 100
inconvenience, and danger of injustice liable to arise where the
policy does not contain the entire agreement and refers for parts
of it to applications or other papers. That purpose is reflected
clearly by the clause that, in default of the required delivery of
a copy of the application, no defense shall be allowed to such
policy on account of anything "contained in, or omitted from, such
application." And the barring of such defenses is the only
consequence declared to result.
Here, the policy definitely declares that it constitutes the
entire agreement between the parties. The defense interposed is
based solely on one of its provisions, and has no relation to the
application. The section does not require written applications to
be made, or declare that, where one is made but not delivered with
the policy, there shall be no defense based on the provisions of
the policy itself. And no reason is suggested in support of a
construction of the section that would prevent defense based on a
provision of the policy, even though a similar or the same
provision were contained in an application. As this policy
expressed the entire agreement, defendant, notwithstanding its
failure to deliver a copy of the application, was entitled to
interpose such defenses as would have been open to it if no
application had been made. MacKinnon & Co. v. Mut. Fire
89 Iowa, 170, 173, 56 N.W. 423; Imperial F. Ins.
Co. v. Dunham,
117 Pa. 460, 473, 12 A. 668. It follows that §
657 furnishes no support for the refusal of the trial court to
permit defendant to show that the insured was not in sound health
when the policy was issued.
* MacKinnon & Co. v. Mut. Fire Ins. Co.,
170, 56 N.W. 423; Rauen v. Insurance Co.,
129 Iowa, 725,
106 N.W. 198; Kirkpatrick v. Accident Co.,
139 Iowa, 370,
115 N.W. 1107; Lenox v. Insurance Co.,
165 Pa. 575, 30 A.
940; Washington Fire Relief Assn. v. Albro,
130 Wash. 114,
226 P. 264; Metropolitan L. Ins Co. & Scott,
537, 134 So. 159.
MR. JUSTICE STONE, dissenting*
If an insurance policy is issued on written application and the
company fails to deliver a copy of it to the insured,
Page 287 U. S. 101
along with the policy, the district statute, in terms, provides
that "no defense shall be allowed to such policy on account of
anything contained in, or omitted from, such application." In this
case, it does not appear that there was any written application,
and, as the defense was based on a clause contained in the policy,
which purported to embody the "whole contract," no case was
presented calling for the application of the statute, or which
would enable a court to say just what force should be given to its
prohibition in a case where the written application, not delivered
with the policy, is in evidence. For that reason, the case should
be reversed if it is not, for other reasons, to be dismissed.
I think it should be dismissed. The certiorari was granted upon
a petition which set forth as grounds for its allowance that the
court below, in construing the prohibition of the statute, had
"decided erroneously a question of general importance," and that
the decision "is in conflict with all decisions in other
jurisdictions involving similar statutes, and therefore tends to
unsettle the law." Upon the briefs and the argument, the statutes
of many states were quoted prescribing the legal consequences of
the failure of the insurer to deliver to the insured, with the
policy, a copy of the written application. Most of them provide
only that, in such cases, the application is not to be considered a
part of the policy or received in evidence in a suit brought upon
it. None contain language like that of the present statute
prohibiting any defense on the policy "on account of anything
contained in or omitted from" the application, and we have been
cited to no decision of any court outside the District of Columbia
in which that language or any resembling it has been
It thus appears that the construction of the statute which we
were asked to review is not in the case, and, even if it were, it
is of local significance only. The conflict of
Page 287 U. S. 102
decisions asserted is not shown. Plainly the question is not of
such general interest or importance as under the rules and practice
of this Court warrants its review upon certiorari . For these
reasons, it is the duty of this Court to dismiss the writ as
improvidently granted. Tyrrell v. District of Columbia,
243 U. S. 1
Southern Power Co. v. Public Service Co., 263 U.
; Houston Oil Co. v. Goodrich,
245 U. S. 440
Layne & Bowler Corp. v. Western Well Works,
261 U. S. 387
Furness, Withy & Co. v. Yang-Tsze Insurance Assn.,
242 U. S. 430
If the writ is not to be dismissed and the case is to be decided
on the construction of the statute, the Court's reversal of the
judgment, in the absence of the application which, for purposes of
decision, it assumes to exist, can only proceed on the ground that
under no circumstances could a defense based on a clause in the
policy itself be said to be one "on account of anything contained
in or omitted from the application." With that conclusion I am
unable to agree. The defense here was that the insured was not in
sound health at the date of the policy. Petitioner sought to
establish it by showing that the state of health of the insured,
then deceased, had been bad for several years before the policy was
issued. If the written application were before the Court and
revealed that the insured had been asked about his condition of
health and had either answered fully and truthfully, or not at all,
it would show, I think, that the defense, within the very meaning
and purpose of the statute, was "on account" of something
"contained in or omitted from the application," and that the
petitioner was precluded from making it.
MR. JUSTICE BRANDEIS concurs in this opinion.