a Secretary or the Treasurer of the Company can make, modify or discharge contracts, or waive any of the Company's rights or requirements; that notice to or knowledge of the soliciting agent or the Medical Examiner is not notice to or knowledge of the Company, and that neither one of them is authorized to accept risks or to pass upon insurability. 4. That by receiving or accepting said policy, any additions or amendments hereto which the Company may make and refer to in Question 10 Above entitled 'Additions or Amendments' are hereby ratified."
Two of the policies in suit, i.e., Nos. 11,773,180 and 11,773,181, each for $5,000, are dated April 8, 1932, and were delivered on April 15, 1932. The premiums thereon were paid. The other two policies in suit, i.e., Nos. 11,780,717 and 11,780,718, are dated April 19, 1932, and were delivered to Adamos during the latter part of May, or the first part of June, 1932. The Premiums thereon were paid.
The last two policies were issued on a supplemental application signed by Adamos, which states: "Supplemental to my application for insurance dated the 6th day of April, 1932, I hereby apply for $5,000 additional insurance on the ordinary life plan to take effect April 8th, 1932, and I reiterate and confirm all the agreements, statements, representations and answers contained in my said original application, and agree that said original application shall form a part of said additional insurance contract. I further warrant and declare that no change has occurred in my health or insurability since the date of my said original application." Adamos signed these supplemental applications the date the policies were delivered, although the date on these papers is April 19, 1932.
After making the original application for insurance on April 6, 1932, Adamos again consulted a doctor and went to a hospital. April 18, 1932, Dr. Hadley was called to the home of Adamos, found him in bed suffering marked pain, and diagnosed the condition as cancer, prescribing a narcotic for relief of pain. He than sent Adamos to the West Penn Hospital, where Adamos was from April 21 to April 29, 1932. three doctors, namely, Drs. Schildecker, Ritterer, and Langer, examined him, and diagnosed his conditions as one of cancer, far advanced and inoperable. Dr. Langer administered deep X-ray and therapeutic treatments to Adamos daily from April 27 to April 29, 1932, and again daily from May 4 to May 11, 1932. These treatments lasted approximately one hour each.
In the death certificate signed and filed by Dr. Ownes, made prima facie evidence by the Pennsylvania Act of 1915, P.L. 900, § 21, as amended by Act April 28, 1927, P.L. 498, § 1, 35 P.S.Pa. § 471, it is stated that Dr. Owens attended from March 15, 1932, to July 5, 1932.
None of these facts is disputed.
Dr. Wiley, the medical examiner who recorded the answer to the questions, testified that he asked Adamos the questions in Part II of the medical examination report; that he correctly recorded Adamos's answers thereto. Dr. Wiley further testified that he read the entire blank to Adamos, and all the questions; that he had no particular difficulty in making the man understand the questions, nor did he have any particular difficulty in understanding the answers, although Adamos spoke with a Greek accent.
The only evidence the plaintiff offered in rebuttal was to the effect that Adamos was an illiterate Greek, and that persons who did not understand Greek had to use an interpreter to converse with him.
The plaintiff conceives that this rebuttal testimony raised an issue of fact that should have gone to the jury as to whether or not the insured was such an illiterate, uneducated Greek, with so slight an understanding of English as to have been unable to make the false answers which appear on the original applications over his signature. We cannot so hold. As we view the law, Adamos bound himself and his beneficiary to the answers as signed. He has no business to sign his name to those answers unless he understood what he signed.
The court generally hold that by signing an instrument, such as an application for insurance, the signer binds himself and those claiming through him to the instrument as signed. Stanulevich v. St. Lawrence Life Ass'n, 228 N.Y. 586, 127 N.E. 315; Kwiatkowski v. Brotherhood of American Yeomen, 243 N.Y. 394, 153 N.E. 847; Erickson v. Knights of Maccabees, 71 Colo, 9, 203 P. 674; Lauze v. New York Life Insurance Co., 74 N.H. 334, 68 A. 31; Emanuele v. Metropolitan Life Insurance Co., 137 Misc. 542, 242 N.Y.S. 715; New York Life Insurance Co. v. Fletcher, 117 U.S. 519, 6 S. Ct. 837, 29 L. Ed. 934; AEtna Life Insurance Co. v. Moore, 231 U.S. 543, 34 S. Ct. 186, 58 L. Ed. 356; Raives v. Raives, 2 Cir., 54 F.2d 267; New York Life Insurance Co. v. Stewart, 5 Cir., 69 F.2d 957.
Mere illiteracy cannot be urged to avoid a written instrument. Commonwealth v. Gudaitis, 323 Pa. 110, 111, 186 A. 82.
The answers which are set out in the medical examination blank and signed by Adamos constituted a part of the policies sued upon. He could not hold the policies without becoming chargeable with knowledge of their contents. By accepting and retaining the policies, he must be held to have adopted as his own, the answers contained in the application attached to the policy, even though they may have been erroneously entered. New York Life Insurance Co. v. Stewart, 5 Cir., 69 F.2d 957.
That these answers were material to the risk, there can be no question. Nor can there be any question that they were false. Therefore, being false, they amount to a fraud upon the Insurance Company which has relied upon them in issuing the policies here in suit.
The answers in question were made to be relied upon and were relied upon by the Insurance Company under the undisputed evidence in this case.
Since the answers were false, it must follow as a matter of law that there was an intention to deceive. Claflin v. Commonwealth Insurance Co., 110 U.S. 81, 3 S. Ct. 507, 28 L. Ed. 76; Raives v. Raives, 2 Cir., 54 F.2d 267, 269.
We, therefore, conclude that the Insurance Company was entitled to have these policies held null and void, and that the plaintiff would then be entitled only to recover the premiums paid.
The plaintiff further contends that a special situation exists as to the second policy dated April 6, 1932, i.e., policy No. 11,773,181, on the ground that there was no application for this policy. There is no merit in this contention. As we have above noted, in the application, over Adamos's signature in the space marked "Additions and Amendments," is entered this notation: "Additional Policy $5000 written on the ordinary life plan." Then it also appears by the quotation from this application above noted, that Adamos ratified any additions or amendments by receiving and accepting this policy. The receipt and acceptance of this second policy with the application, medical history appended thereto, and the payment of the premium thereon, clearly indicated that this policy was issued on the basis of Adamos's medical history shown in the application attached to the policy. The case of Fidelity Title & Trust Company v. Metropolitan Life Insurance Company, 305 Pa. 296, 157 A. 614, cited by plaintiff in support of his position, is not in point, because there were no provisions for amendments and additions which appear in the instant case; and it was necessary to get an additional application signed by the assured, which was not done.
As to the last two policies issued, there is a further reason why the plaintiff could not recover, i.e., Adamos failed to inform the Insurance Company as to pertinent facts which occurred between the date of his medical examination and the delivery of the policies. These facts are, as above noted, that Adamos was in the West Penn Hospital from Apri 21 to April 29, 1932, and was examined there by three doctors who pronounced him to be suffering from an incurable cancer. One of these doctors, i.e., Dr. Langer, administered treatments for this cancer up to May 11, 1932. None of these facts was disclosed to the Insurance Company on the delivery of these policies. His failure to make this disclosure of itself would void these two policies. Stipcich v. Metropolitan Life Insurance Co., 277 U.S. 311, 48 S. Ct. 512, 72 L. Ed. 895.
In addition, by reason of the failure to make disclosure to the Insurance Company that Adamos had consulted and been treated by a physician between the date of his medical examination and the delivery of these policies, these policies would be void by the terms of the insurance contract itself, by reason of these facts. The law is well stated in Subar v. New York Life Insurance Company, 6 Cir., 60 F.2d 239, 240, as follows: "The provision in the application that the policy should not take effect upon delivery if the insured had consulted a physician since his medical examination became a part of the contract for insurance. First National Bank v. Hartford Fire Insurance Co., 95 U.S. 673, 675, 24 L. Ed. 563; New York Life Ins. Co. v. Wertheimer (D.C.) 272 F. 730; Columbian Nat. Life Ins. Co. v. Harrison, 12 F.2d 986 (C.C.A.6); Hurt v. New York Life Ins. Co. (C.C.A.) 51 F.2d 936, 937. And this is true though the insured did not read the application or know its contents, for, as said in Lumber Underwriters v. Rife, 237 U.S. 605, 609, 610, 35 S. Ct. 717, 718, 59 L. Ed. 1140: 'No rational theory of contract can be made that does not hold the assured to know the contents of the instrument to which he seeks to hold the other party. * * * What he (assured) cannot do is to take a policy without reading it, and then when he comes to sue at law upon the instrument, ask to have it enforced otherwise than according to its terms.'"
We, therefore, conclude on the whole case that there was no issue of fact to go to the jury, and that the motion for a new trial must be denied. Let an order be submitted accordingly.
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