Blunt v. Fidelity and Casualty Co.

SHAW, J.

The plaintiff appeals from the judgment. The suit is upon a policy of insurance, of the kind usually designated as an accident policy, issued by the defendant to John P. Blunt for the term of twelve months. It provided that if death should result from an injury within ninety days from the time the injury was received, the defendant would pay to the wife of the insured, if she survived him, the sum of five thousand dollars. The fourth clause of the policy was as follows: “4. In ease of injuries fatal or otherwise intentionally inflicted upon himself by the assured; or inflicted upon himself or received by him while insane, the measure of this company’s liability shall be a sum equal to the premium paid, the same being agreed upon as in full liquidation of all claims under this policy.” At the end of twelve months the policy was renewed for the same period, and at the end of that time it was again renewed. During the last year of the insurance John P. Blunt became insane and was committed to the Mendocino State Hospital. During the term of insurance, and

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while insane, he fell against a steam radiator in the hospital and thereby received injuries from which, within ninety days thereafter, he died. The plaintiff is the surviving wife of the assured. Before the action was begun the defendant tendered her the full amount of the premium paid, and in its answer it offered to allow judgment for that sum in favor of the plaintiff. The court found these facts, and gave judgment in favor of the plaintiff for the sum tendered and against the plaintiff in favor of the defendant for its costs.

In contracts of insurance, as in other contracts, the rights of the parties are determined from the terms of the contract, so far as it is lawful. The contract here in question consisted of the application for insurance made and delivered by the assured to the defendant and the policy of insurance made and delivered by the defendant to the assured. It cannot be conceded that the company was not at liberty to insert conditions in the policy which were not mentioned in the. application. The application contained the affirmative stipulations and warranties made by the assured, and the policy contained the stipulations and limitations made by the insurer. The two together constitute the contract. If the policy of the company, which was issued by the company upon receipt and approval of the application, had contained any clause to which the assured did not agree, he, of course, would have been at liberty to reject it, and either demand a rescission and return of the premium paid, or insist upon a policy without the clause to which he did not assent. But when he received the policy and accepted it without objection, and especially when, as the record here shows, with the policy in his possession, he twice renewed it for an additional year, neither he nor the beneficiary can with good reason claim that there is anything contained in it to which he did not fully consent and agree. The fourth clause above quoted is not unlawful, and it cannot be eliminated on the ground that it is not expressly referred to in the application.