ON REHEARING. The rehearing was granted this case because the original opinion stated that the application was not referred to in the policy, nor made a part of it, and it was urged by the defendant company that this statement was incorrect. The policy did contain references to the application in the paragraphs as follows:
"Occupation. — This policy is free from any restriction as to military or naval service, and, as to other occupations of the insured, it is free from any restriction after one year from its date, as set forth in the provisions of the application indorsed hereon or attached hereto.
"Suicide. — The company shall not be liable hereunder in the event of the insured's death by his own act, whether sane or insane, during the period of one year after the issuance of this policy, as set forth in the provisions of the application indorsed hereon or attached hereto."
These references were not made in such a way as to make the application a part of the policy. In the case of Farmers' Ins.Co. v. Snyder, 16 Wend. (N.Y.) 481, 30 Am. Dec. 118, it was held that the reference to a survey in a fire insurance policy was not a warranty such as to render the policy void if the description in the survey was in part correct. In the case ofCampbell v. New England Mut. L. Ins. Co., 98 Mass. 381, the court said:
"When statements or engagements on the part of the insured are inserted, or referred to in the policy itself, it often becomes difficult to determine to which class they belong. If they appear on the face of the policy, they do not necessarily become warranties. Their character will depend upon the form of expression used, the apparent purpose of the insertion, and sometimes upon the connection, or relation to other parts of the instrument. If they are contained in a separate paper, referred to in such a manner as to make it a part of the contra, the same considerations, of course, will apply. But if the reference appears to be for a special purpose, and not with a view to import the separate paper into the policy as a part of the contract, the statements it contains will not thereby be changed from representations into warranties." *Page 211
In the case of Commonwealth's Ins. Co. v. Monninger,18 Ind. 352, the court said:
"We do not think the mere indication, in the policy, of the place where the application could be found on file, can be regarded as so referring to it as to make it a part of the policy. In this view we are strengthened by the language used, which appears to disclose the purpose for which the reference is made, namely, 'for a more particular description'; and if it does not exclude the conclusion, it at least does not warrant us in concluding that the reference was intended for the purpose of incorporating said application as part of the policy, so that in any court its statements could be regarded as warranties. We are aware that a paper, attached to a policy, may by express terms, etc., be made a part of it, and amount to a warranty. But it should be referred to expressly as forming a part of it. Farmers' Ins. Co. v. Snyder, 16 Wend. [N.Y.] 481, [30 Am. Dec. 118]; Burrett v. Saratoga, etc., 5 Hill [N.Y.] 188 [40 Am. Dec. 345]; Jefferson Ins. Co. v. Cotheal, 7 Wend. [N.Y.] 72 [22 Am. Dec. 567]; Andrews v. Essex, etc., 3 Mason, 6; Jennings v. Chenango, etc., 2 Denio [N.Y.] 75; Trench v.Chenango, etc., 7 Hill [N.Y.] 122."
To the same effect is Williams v. New England Mut. F. Ins.Co., 31 Me. 219; Columbia Ins. Co. v. Cooper, 50 Pa. 331; 1 May on Ins. 314; 2 Cooley's Briefs on Ins. 1136.
The references above set out were not sufficient to make the application a part of the policy, and its statements were mere representations, as decided in the original opinion.
The judgment should therefore be affirmed.
By the Court: It is so ordered. *Page 212