United States Fidelity & Guaranty Co. v. Leong Dung Dye

Appellee, beneficiary in an accident insurance policy issued to her husband by appellant on October 8,1928, recovered judgment in the Circuit Court of the Territory of Hawaii for the faee of the policy for the death of the assured on-April 30,1929, whieh judgment was affirmed by the Supreme Court of the Territory and appeal to this court prosecuted.

At the close of the evidence appellant moved for an instructed verdict in its favor, which motion was denied. After submission, the jury returned a verdict in favor of appellee. Thereafter appellant moved for judgment notwithstanding the verdict, whieh was denied. No challenged instruction of the court is before us for review. Section 2524, Rev. Laws Hawaii 1925. The sole question is: Under the evidence was the appellant entitled to a verdict or judgment as a matter of law?

In the application for insurance appears the following:

“I hereby apply to the United States Fidelity and Guaranty Company for a Policy to be based upon the following representation of facts: I understand and agree that the right to recovery under any policy whieh may be issued upon the basis of this application shall be barred in the event of any one of the…

The insurance policy herein sued upon stated that the policies were issued in consideration of $36.00 and “of the statements in the application for this policy, copy of which is endorsed hereon and made a part hereof.” By this reference the policy makes the attached application a part thereof, and the question as to whether or not the applicant signed the original application is wholly immaterial. Having accepted the policy and the benefits thereunder he is bound by its terms, which include the provision that the answers of the insured in the attached applications were a par.t of the consideration. While this proposition is sufficiently obvious to make unnecessary the citation of authority, it has been expressly decided in the Columbian Nat. Life Ins. Co. v. Harrison (C. C. A.) 12 F.(2d) 986 , that he could not sue on the policy and deny that he signed the application thereto attached. The reason which supports this conclusion would apply equally to an unsigned application attached *572 to the poliey and made a part thereof, as in the ease at bar.

The opinion of the majority of the court proceeds upon the assumption that, there was an issue as to whether or not the decedent made…