Page:North Dakota Reports (vol. 1).pdf/205

From Wikisource
Jump to navigation Jump to search
This page needs to be proofread.
JOHNSON v. DAKOTA FIRE & MARINE INS. CO.
181

clusive that the plaintiff did not in fact know that a copy of the application was indorsed upon his policy, nor discover the errors in the application respecting the incumbrances, until the day preceding the trial Under these circumstances, the question arises whether the plaintiff, despite the contrary fact, is not conclusively presumed to have read and become acquainted with the contents of the policy, including the copy of his application for insurance indorsed on the policy. If such is the presumption of law, then the further question arises whether the plaintiff is guilty of such laches in not seeking a correction or reformation of the contract as will defeat his recovery upon the policy. It is well settled that, where an insurance policy is delivered to the applicant, he is presumed to know its contents, and cannot evade a forfeiture for a violation of its provisions on the ground that he never read it. “Wood, Ins. § 503; Smith v. Insurance Co. (Dak.) 43 N. W. Rep. 810; Hankins v. Insurance Co. (Wis.) 35 N. W. Rep. 34; Cleaver v. Insurance Co., (Mich.) 32 N. W. Rep. 660. And where a paper is physically annexed to the policy, or indorsed thereon, and adopted in the policy as a part thereof, the. same will form a part of the insurance contract. Wood, Ins. § 137, notes 1, 2, 3; also § 149, id.; Murdock v. Insurance Co., 2 N. Y. 210; Duncan v. Insurance Co., 6 Wend. 488; Emerson v. Murray, 4 N. H. 171; Roberts v. Insurance Co., 3 Hill, 501. The case of Insurance Co. v. Fletcher, 117 U.S. 519, 6 Sup. Ct. Rep. 837, very closely resembles the case at bar as to the feature under consideration. Mr. Justice Field, in delivering the opinion of the court, said: “There is another view of this case equally fatal to a recovery. Assuming that the answers of the assured were falsified, as alleged, the fact would be at once disclosed by the copy of the application annexed to the policy, to which his attention was called. He would have discovered by inspection that a fraud had been perpetrated not only upon himself, but upon the company, and: it would have been his duty to make the fact known to the company. He could not hold the policy without approving the action of the agents, and thus becoming a participant in the fraud committed. The retention of the policy was an approval of the application, and of its statements.” Citing Insurance Co. v.