on the language of its own standard form contract which provided that "No waiver or modification shall be binding upon the Company unless in writing and signed by the President or a Vice President and the Secretary or an Assistant Secretary." Upon payment of the first premium by Thompson, Kelly modified the completed contract form by changing the "mode of premium payment" from "annual" to "monthly," scratching out "C.O.D." (which evidently meant "collect premium on delivery of policy") and substituting "$205" as "payment with application." Occidental contends that these "unauthorized" modifications were not binding upon the company because of the above quoted language, which assertedly put Thompson on notice that Kelly had no authority to modify the standard language of the policy application.
We cannot accept Occidental's position, forjury, answering a special interrogatory, and the trial judge, exercising his independent judgment, found that Thompson did not misrepresent or conceal the state of his health and past medical history to Occidental. That finding is supported by substantial evidence.
The alleged misrepresentations occurred during the insurance medical examination on August 11, 1964, and pertain to matters set forth in Thompson's insurance application. The record discloses that Thompson did not fill out the application himself; instead, his oral responses were recorded by the examining physician, Dr. Epstein, a private practitioner on Occidental's "approved" list of physicians, who, by prior arrangement with Occidental, performed medical examinations of insurance applicants. Dr. Epstein read the questions on the application to Thompson during a Friday afternoon session which included both a physical examination and