
    Home Mutual Life Association of Pennsylvania v. Riel.
    In an action on a life insurance policy, by a beneficiary named in the policy, on the life of another, it appeared that the .application purported to be signed by the mark of the beneficiary in thepoliey; that the premiums were paid by her for several years; and that these were received by the insurance company and retained by them. The beneficiary testified that she knew nothing of the insurance until she got the policy, but her evidence was confused and contradictory. The court refused defendant’s request to charge “ that, as the plaintiff has shown by her own testimony that she never saw the application, never signed it, and never authorized any one to sign it for her, the policy in this case is utterly void.” Held, not to be error.
    Per Curiam. — Whether the signature, which was by mark only, is genuine or not, is not much to the purpose. She accepted the policy, has paid the premiums, and is bound by its terms. The company received the premiums and has retained them'up to the present time. If, during all these years, the company was not bound for such a cause as this, there should have been a return, or, at least, .an offer to return, the premiums.
    Defence was also made that the statement, in the application, with regard to the age of the insured, was not true. It was assigned for error that there were inadequate instructions on the evidence upon this point, but the judgment was affirmed.
    Feb. 25, 1889.
    Error, No. 281, Jan. T. 1888, to C. P. Lackawanna ■Co., to review a judgment on a verdict for plaintiff in an action of debt on a policy of life insurance, on the life of Patrick Gannon, deceased, by Thomas Riel and Mary, his wife, in right of said wife, against the Home Mutual Life Association of Pennsylvania, at Oct. T. 1886, No. 529. Williams and McCollum, JJ., absent.
    The trial was had before Archibald, J. The plaintiff offered in evidence the policy on which suit was brought; also the application for the policy purporting to be signed by Mary Riel, her mark, and by Patrick Gannon, his mark.
    The plaintiff further offered in evidence the proof of death. This contained a statement that the deceased was born in 1824, while the application stated 1825. Upon the close of the plaintiff’s case, defendant moved for a non-suit on the ground that it appeared, by plaintiff’s proofs, that the application had misstated the age of the insured, or the proof of death was untrue, and in either case there can be no recovery. Non-suit refused.
    A number of witnesses were called by the defendant to prove that the representations made by Patrick Gannon as to his age at the time of the application and in the application were untrue. This evidence is stated in the charge, infra.
    Dr. Haggerty, who examined Gannon for the company, was called as a witness for the plaintiff and asked this question: Q. “Judging from the appearance of Patrick Gannon at the time of his visit to your office, what was his age ?” Objected to, objection overruled and exception. Ans. “Fifty-four years.” The witness further testified that he never saw Gannon but once. Dr. Haggerty was a witness to the signature of Mary Riel in the application.
    The defendant offered in evidence the deposition of Patrick Gannon, taken on Feb. 2, 1885, in a case then pending in the common pleas, for the purpose of showing his age at the time the depositions were taken. Objected to, objection sustained and exception.
    Mary Riel testified that she did not know anything of the insurance until she got the policy, although her evidence was confused and contradictory, she saying also that a friend wrote the application for her; but the evidence was uncontradicted that she paid the premiums and that the company received and retained them.
    The policy contained, inter alia, the following terms:
    “ In consideration of the application for this policy of insurance, which is hereby referred to and made a part of this contract, and of each of the statements made therein, which, whether written by his own hand or not, every person accepting or acquiring any interest in this contract hereby adopts as his own, admits to be material and warrants to be full and true, and to be the only statements upon which this contract is made. . . .”
    “ If any statement, made in the application for this policy, be in any respect untrue, the consideration of this contract shall be deemed to have failed, and the Association shall be without liability under it.”
    The court below charged the jury as follows :
    “ On Nov. 28, 1819, the Home Mutual Life Association of Pennsylvania, the defendant in this case, issued a policy of insurance upon the life of Patrick Gannon in favor of his daughter, Mary Riel. By that, the company agreed to pay to Mrs. Riel, her executors, administrators or assigns, the sum of $8,000, at the office of the association at Lebanon, in this state, within ninety days after notice and the proofs of death required by the company had been furnished and approved at the office of the association.
    “ The consideration of this agreement on the part of the Home Mutual Life Association of Pennsylvania, as recited in the policy, Was ‘ the payment of the sum of $24 and of the payment of the sum of $15 annually, after the date hereof, for the next succeeding three years, and thereafter the further sum of $6 annually,’ and the payment of what are known as mortality assessments.
    “ These payments, according to the evidence, have all been made. It is proved that Patrick Gannon is dead, and proofs of his death have been furnished to the company. The company, however, declines to pay, and hence this action is brought to recover upon this policy, the agreement made by the company.
    “ But the money consideration, mentioned in this policy, was not the only consideration of it. Prior to the issuing of the policy, an application to the company for this insurance was made, and that application is made a part of the consideration of the issuing of this policy, a part of the contract; and the statements made therein are adopted by the person in whose favor this policy is issued as the statements upon which the contract was made, and are warranted by the applicant to be true.
    “ This application was made on Nov. 26, 1879, two days before the issuing of the policy, and was received and approved by the company. [It does not matter that Mrs. Mary Riel did not sign this application; having accepted the contract of insurance upon which it is based, she is bound by it; bound by the statements made therein and the terms of it; and, as I have already stated to you, she has warranted or guaranteed to the company that the statements made in the application are true.] [1]
    “We find, in the application, as to the age of the person whose life was insured, Patrick Gannon, that his birthday was on May 10, 1825. In answer to the question as to what his age was, at the nearest birthday, it is stated ‘ 54,’ or, in red ink, marked ‘ 55.’ This ‘ 55 ’ age corresponds with the age mentioned at the head of the policy.
    “ Hpon this point, as you are well aware, from the evidence produced and from the argument of counsel, the sole issue in this case arises. The defendant asserts and makes defence to the payment of this policy upon the ground that the statement with regard to the age of Patrick Gannon is not true. That is a perfectly lawful and proper defence on the part of the Company to make, and if they have established that the statement with regard to the age of Patrick Gannon is not true, then the plaintiff is not entitled to recover. The burden, however, is upon the defendant to show that it is not true. The presumption, if any, is that the statement, as made, with regard to the age of Patrick Gannon, in the application, is true. It is upon the defendant to convince you, by proper evidence, that it is not. For that purpose, the first witness called upon that question was James Gannon. He is stated to be the oldest son of old Mr. Gannon. He gives his present age as fifty-three. According to that, if that be correct, his age in 18J9, when the application was made and this policy of insurance was issued, would be forty-five. If then, his father, Patrick Gannon, at that time, was only fifty-four or fifty-five years of age, there would be but ten years difference between them, which is hardly possible or probable. If his age, then, be now correctly stated, if you believe that to be his correct age, and he is the oldest son of Patrick Gannon, and you believe Patrick Gannon to be his father, then this furnishes evidence with regard to the question at issue and would tend to show that the statement made by Patrick Gannon as to his age being fifty-four or fifty-five was untrue, and that he must have been considerably older at that time. More than this: the same witness says he has heard his father state his age to be eighty years. This statement was made, according to the testimony, about a year ago. It appears, however, from other testimony in the case, it was made in July, 1885, nearly three years ago. This witness further states that at other times his father made assertions with regard to his age which would correspond with the age of eighty years given at the particular time referred to. If Patrick Gannon, a year or two ago, was eighty years old, then in 18J9, when this application was made and the policy of insurance was issued, he would have been about seventy-two or seventy-three years old, instead of being fifty-four or fifty-five years old, a difference of some twenty years between the age as given in the application upon which the policy issued and his true age. That this was a most material difference, I hardly need argue to you.
    
      “ The plaintiff, however, claims that the credibility of this witness is assailed, because he has feeling against his sister and the plaintiff, and that that has changed and perverted his testimony. You know from the testimony, the circumstances to which I refer, to wit, his having been a party to a suit against his father and against Thomas Riel, the husband of Mary Riel, for certain land. But the statement of old Mr. Gannon with regard to his age is not only sustained by this son, but is also sustained by the testimony of John Scragg, an attorney of this bar, who was present on the occasion that the old gentleman stated what his age was. It appears that Patrick Gannon was then being examined as a witness. Mr. Martin R. Kayes, the commissioner, or notary public, took down his testimony, and it was in relation to the suit in ejectment already mentioned. Mr. Scragg says that he had formerly been a client of his and that, at the time, he thought- him too old to be examined; and it was in that connection and with that in mind that he obtained a statement from the old gentleman of what his age was. Mr. Kayes, wbo took down the old gentleman’s testimony, says that the statement in regard to his age was indefinite; that he could not tell what his age was; and that it was rather agreed upon between the counsel who were there representing the respective parties, that his age should be put down as eighty years; that it was a matter of no particular moment, but finally he only stated his age to be about eighty when pressed to it by Mr. Scragg’s frequent questions; that his statement was, Ghat he could not say whether he was under or over eighty years.’
    “Again, the plaintiff has produced as a witness Dr. Haggerty. He was the one who made an examination of Patrick Gannon when the application was made upon which this policy is based. He says that Patrick Gannon came to his office in company with Patrick "Waldron, the agent of defendant, and that at that time, judging from Gannon’s appearance, he should consider him to be about nftyfiour years of age, corresponding about with the statement made in the application. He, however, says that he had never seen him before and did not see him subsequently. It was just then that simple, casual meeting. Another witness on the part of the plaintiff is Martin Clark, who says he had known Patrick Gannon bétween sixteen and seventeen years, and that he was present in Dr. Haggerty’s office at the time that the application was made. His name, in fact, appears as a witness to Patrick Gannon’s mark upon the first page of this application, which would tend to confirm his statement •that he was there present; and he also says that from the appearance of Patrick Gannon he must have been about sixty years old when he died, as he should judge. If this be correct, then Patrick Gannon, having died within a year or two and allowing for the difference, it would make him about fifty-two years of age when the -application was taken out and the policy issued in 1819, which would be less than the age then given.
    “Now, this evidence I admitted, as you are aware. It is, of •course, slight evidence, these opinions of Martin Clark and Dr. Haggerty as to his age, but it is for you to judge how far it effects or counteracts the testimony produced on the part of the defendant to show that the old gentleman was very much older than that.
    “As I have already said, the burden is upon the defendant to ■show that the statement in the application is not true. It is to be •taken as true until the defendant has convinced you otherwise. If you believe the testimony produced on the part of the defendant, then Patrick Gannon, at the time he was insured, was far older than represented in this application; and, if he was so, then the defendant is entitled to your verdict, and the plaintiff is entitled to nothing.
    “ It does not matter that these premiums or mortality assessments have been paid. The plaintiff must stand on the policy, and one of the material parts of it is that this man was fifty-four or fifty-five years old. If he was twenty years older, or any older, -then the plaintiff is not entitled to i’ecover.
    
      “ If, on the other hand, the evidence does not convince you that Patrick Gannon was of the age which the defendant contends he was, that is to say, of a greater age than fifty-four or fifty-five years, as represented in the application; or if the testimony in all the case on the part of the plaintiff convinces you and you find as a fact that Patrick Gannon was only of the age as stated in this application, then the plaintiff would be entitled to your verdict.
    The defendant requested the court to charge:
    “ 2. As the plaintiff in this case has shown, by her own testimony, that she never saw the application, never signed it, and never authorized any one to sign it for her,- the policy in this case was utterly void, and therefore the plaintiff cannot recover. Ans. Refused.” [1]
    Yerdict and judgment for the plaintiff for $3,211.50.
    Subsequently an application and affidavit was filed asking that the judgment be restricted to the sum realized from one assessment upon the members of the association. This application was refused. [6]
    The court discharged a rule for a new trial in the following opinion, by Archbald, J.:
    “It was held in Carrigan v. Mass. Benf. Association, 15 Ins. Law Journal, 30, that a policy of insurance was void, which was. obtained upon an application purporting to have heen signed by the person whose life was insured, but in fact signed by another in her absence. This is undoubtedly the law, and there is good reason for it. The application in that, as in other cases, required answers to searching interrogatories regarding the past and present physical condition of such j>erson, to be made over her signature. The contract embodied in the policy was made upon the belief by the company that they had the personal answers of the insured attested by her own signature. The palming off of anything else upon the company, if designedly done, would be such a fraud as might well be held to vitiate the contract between the parties; or, if without design, it would be such a mistake of fact as would equally entitle the company to avoid it. But the principle of this decision must be regarded before we seek to apply it to other cases. The company were entitled to the answers of the insured herself, and authenticated by her own hand. In meeting this requirement, another could not stand for her. But it was not so much that the application was not signed by the insured as that it did not emanate from her. It was, throughout, the work of another, and this was its vice, rather than the simple circumstance that it did not have her own proper signature.
    “ That case is not coincident with this. It is here, that in this Mrs. Riel did not sign the application, nor authorize any one to do so for her. But she is the beneficiary, and not the person whose life was insured. The only effect of her signature to the application would have been to bind her to the statements made in it, as warrantee, and to make her liable for the payment of the premiums and mortality assessments.
    
      “ It is difficult to see how the company could be prejudiced by the fact that some one signed the paper for her, much less how any fraud was thereby perpetrated upon them.
    
      “ The policy, by its terms, embodied these obligations. It was made subject to the application, and, in accepting it, the assured adopted the application, and warranted all the statements as full and true. She further not only thereby agreed to pay the premiums and assessments, but she has carried out this agreement, and actually paid them all in full.
    “ It does not lie now in the mouth of the defendants to say that she was not bound to do this because she did not subscribe to the application, and that, therefore, there was no contract. The policy is the contract between these parties. The application is only a part of the consideration upon which it is based. This the assured adopts and makes her own.
    
      “ The fact that it was signed by some one else, and not by Mrs. Riel, is not, under the circumstances, material, so as to make the concealment of it a fraud, or the want of knowledge of it a mistake, sufficient to vitiate the contract.”
    
      The assignments of error specified, 1, the portion of the charge given above and the answer to defendant’s point, quoting them; 2, the action of the court in refusing to grant a compulsory non-suit ; 3 and 4, the rulings on the evidence, without quoting the bills of exceptions; 5, the action of the court in inadequately instructing the jury upon the evidence presented by the plaintiff and defendant upon the question of the age of Patrick Gannon, the assured; and, 6, in refusing to restrict the judgment as above.
    
      H. M. Hannah, with him Grant Weidman, for plaintiff in error.
    There was no contract between Mrs. Riel and the company. She knew nothing of the policy. No contract exists unless there is an assent by both parties to the same thing in the same sense. Grant v. Levan, 4 Pa. 423; Johnston v. Fessler, 7 Watts, 48. That Mrs. Riel could have adopted the application or rejected it, shows she was not bound. There was no ratification of the contract by Mrs. Riel. Ratification can only take place with a full knowledge of the facts and circumstances, which the party is supposed to have a right to reject. R. R. v. Gazzam, 32 Pa. 340; Johann v. Inman, 17 Leg. Int. 190; Beeber v. Pabst, 6 Cent. R. 191.
    The company did not know that Mrs. Riel had not signed the application, and the by-laws of the association required the signature of the applicants. It was error to permit Dr. Haggerty, who never saw Gannon but once, to testify as to what his age appeared to be.
    The fifth assignment of error should be sustained, under Mead v. Conroe, 113 Pa. 220.
    
      E. B. Sturges and C. R. Pitcher, for defendant in error.
    The evidence shows that Mrs. Riel did sign the application; but it was not necessary for her to sign, as appears by the opinion of the court belowr discharging the rule for a new trial.
    If the crime of forgery entered into the transaction, it must have been the forgery of the company’s own agent, and that would not enable the latter to avoid a policy to the injury of the insured, who innocently became a party to the contract. Eilenberger v. Ins. Co., 89 Pa. 464; Smith v. Farmers and Mechanics’ Ins. Co., 89 Pa. 287.
    The depositions were not admissible. The offer did not come within the provisions of the Act of March 28, 1814, Purd. page 729, or the decisions providing that depositions may be used in subsequent suits “ between the same parties, in regard to the same subject-matter.” Rothroch v. Gallaher, 91 Pa. 108.
    March 11, 1889.
   Per Curiam,

We fail to see any error in that portion of the charge of the learned judge below embraced in the first assignment of error, or in his answer to the defendant’s second point. The application purported' to be signed by Mary Eiel, for whose benefit the policy was issued. Whether the signature, which was by mark only, is genuine or not, is not much to the purpose. She accepted the policy, has paid the premium on it for several years, and is undoubtedly bound by its terms, precisely as if she had signed it. The company received the premiums and has retained them up to the present time. If, during all these years, the company was not bound for such &■ cause as this, there should have been a return, or at least an offer to return the premiums.

The second assignment cannot be sustained. The proofs of loss are not before us; hence we need not speculate as to their bearing upon this point.

Judgment affirmed.  