#### Samuel Kelly, Defendant in Error, v. Metropolitan Life Ins. Co., Plaintiff in Error.

Gen. No. 14,722.

Insurance—when application part of contract. Where the intent to make the application a part of a policy clearly appears, the court, no matter what the phraseology may be, will read the application into the contract of insurance and construe the contract of insurance and the application together.

Assumpsit. Error to the Municipal Court of Chicago; the Hon. Albert E. Bergland, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.

Reversed and remanded.

Opinion filed December 21, 1909.

Rehearing denied January 4, 1910.

Hoyne, O’Connor & Irwin, for plaintiff in error.

*180James Maher, for defendant in error.

Mr. Justice Mack

delivered the opinion of the court.

Judgment was rendered in favor of plaintiff, defendant in error, in the Municipal Court of Chicago for $110, the amount of a policy issued by the plaintiff in error to plaintiff’s wife for his benefit. The plaintiff offered in evidence the face of the policy and that part of the back showing the amount and the name of beneficiary.

The material parts of the face of the policy are as follows:

‘ ‘ Metropolitan Life Insurance Company.

In consideration of the statements in the printed and written application for this policy, a copy of which is hereto annexed, all of which are hereby made warranties and part of this contract, and of the payment of the premium mentioned in the schedule on the back hereof, on or before each Monday, hereby agrees, subject to the conditions herein, to pay, etc., * * * the amount stipulated in said schedule.”

On the back of the policy is printed the following: “Schedule referred to on face of policy.” Then follows a statement of weekly premium, amount of policy, name of plaintiff as beneficiary and date of policy, September 3, 1906. Following this there is printed:

“Copy of Application for this Policy.

I hereby apply to the Metropolitan Life Insurance Company for insurance. To induce the said Company to issue a Policy, and as consideration therefor, I warrant and agree, on behalf of myself and of any other person who shall have or claim interest in any Policy issued under this application, as follows:”

followed by a series of printed statements including:

“2. I have never had any of the following complaints or diseases: * * * consumption * * * except

*1815. I have never been under the care of any physician within two years except

I agree that as to each and every one of the foregoing paragraphs, where nothing is written after the word ‘except/ I warrant the statement therein contained without exception. * * *

And I further declare, warrant and agree that the representations and answers made above are strictly correct and wholly true, that they shall form the basis and become part of the contract of insurance, if one be issued, and that any untrue answers will render the Policy null and void, * * At the end is the date, August 24, 1906, and the name of the insured, typewritten.

The defendant offered this “copy of application” on the back of the policy in evidence, but the court excluded it on the ground that the original application had not been accounted for. The testimony clearly established that the insured had-been treated by a physician on and off for eight years, and as late as August 24, 1906, the date of the application as it appears on the b'ack of the policy, for consumption; again on September 23, 1906; that she had chronic consumption from the time she first came under the notice of her physician, at least seven years. In 1904 she was advised by him to go to Denver, and in 1906 she was gradually getting worse. All of this testimony was subsequently stricken out over defendant’s objection.

Plaintiff claims that the copy of the application and therefore the testimony of the physician based thereon was rightfully excluded and that in its absence the policy is an unconditional promise to pay the amount at death. His argument is that the words in the beginning of the policy make the statements contained in the original application, but neither the application nor the copy thereof, a part of the contract; moreover that no copy is annexed but, at the best, only printed on the back of the policy.

¡We cannot follow this reasoning. As the Supreme *182Court has said in Treat v. Merchants’ Life Association, 198 Ill. 431: “Where the intent to make the application a part of the policy clearly appears, the court, no matter what the phraseology may be, will read the application into the contract of insurance and construe the contract of insurance and the application together.”

In our opinion the language following the words on the back of the policy, “Copy of application for this policy” is the copy referred to on the face of the policy, as annexed, and the statements therein contained accepted by both parties as a copy of the original written and printed statements subject to the power of a court of equity to correct any mistakes in transcribing them, form an essential part of the contract and of the policy. Comer v. Comer, 120 Ill. 420.

The court erred therefore not only in excluding the statements on the back of the policy when offered by defendant and the physician’s testimony to show the falsity thereof, but also in permitting plaintiff to offer a part only of a written contract over defendant’s objections that the entire document must be introduced in evidence. Rogers v. Cedar Rapids Ins. Co., 72 Ia. 448; Col. Exp. Salv. Co. v. Surety Co., 123 Ill. App. 245.

For these errors the judgment of the lower court must be reversed and the cause remanded.

Reversed and remanded.