dissenting:
Being of the view that the facts of this case, really not in dispute, do not bring it within the principles applied thereto, except as to Point 1 of the Syllabus, I am forced to dissent.
To properly appraise the problems involved, it must be kept in mind that the original insurance policy provided only “Indemnity for expenses for treatment” for certain so-called “dread diseases”, including poliomyelitis but not including cancer. Except in a single instance not here material, involving a different disease, covered by a different rider, the amount of indemnity as to “expenses for treatment” incurred as to each of the several diseases covered was exactly the same, all being covered by the one definite provision as to the extent of liability. Therefore, it is clear that the only real question to be decided is whether the so-called letter or rider received by the plaintiff in October, 1957, had the effect, either by agreement or estop-pel, of placing cancer within the coverage of the policy. Before dismissing or sloughing off the effects of that paper as an advertisement, it should receive a more careful analysis or appraisement as to its qualitative characteristics.
The so-called advertisement was signed by the vice president of the defendant company; it was addressed and mailed to plaintiff, as a “policyholder”; it stated emphatically, without reservation, that “The Company has recently added Cancer Benefits to your policy, without any increase in premium”; and that this was “in accord with our Company practice # # *”. That this statement, representation and assurance was *176received by the plaintiff and attached to the original policy, in the manner provided by the original policy, as was done in the case of the previous rider not here involved, is not questioned. How could language be more certain and exact than * ‘ The Company has recently added Cancer Benefits to your policy”? The quoted statement did not refer, by no possible view could have referred, to “the new Independence Family Life Insurance Policy”, an altogether different type of insurance policy, which was then being advertised and sold by defendant.
Neither is it questioned that plaintiff subsequently twice renewed the policy, paying the regular premiums demanded by the defendant, and the inference is clear, I think, that he did so only because of reliance on the statements of the defendant company. There is no denial of that fact. Each of the receipts which in form were also notices of renewal premium due dates, mailed by defendant to the insured, gave the policy number, and contained this emphatic statement, representation and assurance: “All these specified diseases are covered Cancer; Diphtheria; Encephalitis; Leukemia; Meningococcic; Meningitis; Polio; Rabies; Scarlet Fever; Smallpox; Tetanus”. Thus cancer was expressly and positively placed in the same category as the other covered diseases. It may be significant that the apparent generosity of the defendant in adding cancer to the coverage was occasioned by the appearance and effect of the Salk polio vaccine, which rendered the original policies of the class of that held by plaintiff of much less value, much less saleable. The action was for the purpose of avoiding the lapsing or cancellation of existing policies. It had that exact effect as to the policy owned by plaintiff.
It is true, of course, that the so-called letter contained certain other statements which could be properly referred to as advertising, mentioning the “Family Life” policy. I would deem it useless, though, to argue or attempt to cite authorities to the effect that any such references would not vitiate the effects of a *177true rider. Moreover, undoubtedly an advertisement could be so worded and projected as to constitute a basis, at least, for an estoppel. Neither do I deem it necessary to attempt to answer, in this memorandum, the contention made in tbe majority opinion to the effect that the original policy contract having been previously amended by a form rider not here involved, any subsequent amendment, particularly the one here involved, ought to have been or expected to have been consummated in the same maimer. There is no exclusive way to effect a modification of a contract. It may be done even by parol or implication. It should be also kept in mind that the finding of the jury excludes from present consideration any question about the other supposed rider mailed to the agent of the insurer, but never received by the insured. That finding settled the only issue of fact formulated by the pretrial order, and the only issue of fact involved in the case.
Of course, if the question here considered is to be measured by the necessary elements of an original insurance contract, there must have been a meeting of minds as to the essential elements of the contract. The only facts relied on by the majority, as establishing a failure of the meeting of minds as to the rider in question, are that it “did not mention the essential elements of the amount of the added cancer benefits or the time at which they would commence and become effective ’ \ The contention last recited may be considered as resulting from an oversight, for the paper clearly and unquestionably says that such “Cancer Benefits” have recently been “added”. As above pointed out, there was no necessity for mentioning any amount of cancer benefits, since the original policy covered “expenses for treatment” in the same manner and amount as to each of the diseases covered by the policy.
Considering the nature of the original policy, one for “expenses for treatment” only, applying alike to all diseases covered except the one disease covered by a different rider, it appears clear to me that the only *178possible question was whether cancer should be included in the coverage. As to that, it can hardly be contended that there was not a meeting of minds. The defendant stated the proposition in the socalled letter of October, 1957. The insured accepted that very proposition or statement, not questioning its precise and exact meaning, attached it to the original policy, and relied on it as constituting a part of the policy. He thereafter paid the premiums demanded by the company. When considered in its true light, there appears no basis whatever for the conclusion that there was not a meeting of minds. There was in fact and truth complete consentience. Should any person, including an insurance company, be permitted to make such a solid, emphatic statement, representation and assurance and then, after having received additional moneys because thereof, be permitted to say there was no meeting of minds because something else could have been intended? That an existing contract may be modified, even by parol or by implication, there is not the least doubt. See Azure v. Hunter, 101 W. Va. 191, 132 S. E. 726; Noyes v. Caperton, 68 W. Va. 13, 69 S. E. 364; 44 C.J.S., Insurance, Section 260; 4 M.J., Contracts, Section 54; 29 Am. Jur., Insurance, Section 335. In 29 Am. Jur., Insurance, Section 359, it is stated: “* # * It is generally held, however, that agreements to renew need not be as definite as to terms as an agreement to issue a policy, since the agreement will be presumed to adopt and have reference to the terms of the existing or expiring policy, and these agreements have been upheld where there was no specific agreement as to terms * * *”. It is more reasonable to say that where “expenses for treatment” incurred by an insured as to a certain disease, here cancer, are brought within coverage by a rider, that the parties “will be presumed to adopt and have reference” to the applicable provisions and terms of the original policy. Undoubtedly that was the true intention of the parties.
Though I should assume, for argument, there was no meeting of minds, I can not escape the conclusion that *179the action on the part of the defendant constituted a clear and definite estoppel on the part of defendant to deny the modification, the inclusion of cancer within the coverage of the policy. This is definitely made to appear, not only by the language used, ‘ ‘ Cancer Benefits” have been “added” to the policy, but also by the notices from the defendant to the insured, giving the correct number of the policy sold to the insured and advising that ‘ ‘ cancer ’ ’ is now ‘ ‘ covered ’ ’ by the policy, and by the receipt and acceptance of the payment of the premiums thereafter accruing and demanded by the defendant company. This fully and definitely, I believe, satisfies the test laid down by the majority as to the necessary elements of an estoppel within the meaning of insurance law. "Who can say that the conduct of the defendant, in making and mailing the statement signed by the vice president of the defendant company, to the effect that “Cancer Benefits” have been “added”, or that the premium notices to the same effect, were not “sufficient to justify a reasonable belief” that the facts stated were true, or who can deny, or even question, that the insured relied thereon, paying the renewal premiums as demanded by defendant? See 44 C.J.S., Section 275; 10 M.J., Insurance, Section 44. An examination of the authorities cited in the majority opinion will, I believe, clearly demonstrate that the plaintiff should not be precluded from recovery in the circumstances of the instant case.
Yet another principle, referred to and relied on by the circuit court, requires an affirmance of the judgment of that court. It is stated in 44 C.J.S., Insurance, Section 275(2) as follows: “* # * Even where there is a mistake and both parties act in good faith, yet where the mistake is that of the company or its agents and it reasonably induces the other party to believe that he is insured, the company is estopped to deny the existence of the insurance.”
Though the majority opinion dismisses the question of fraud as having no significance, I can not do so. It certainly should have significance if considered with, *180or as affecting, tlie question of estoppel. The very fact that defendant forwarded the first rider, relating only to poliomyelitis, direct to the policyholder, the plaintiff, hut as to the rider offered as a defense, mailed its agent “a quantity of riders”, none of which was ever delivered to plaintiff, in my view, establishes an intent to deceive and defraud. This, considered along with the statements of defendant quoted above, and its actions detailed above, clearly shows actual fraud on its part. I can not believe that a scheme so devised, designed and executed as to deceive the most experienced and learned, especially where perpetrated in the field of insurance, should be countenanced or treated lightly.
I am authorized to say that Judge Browning joins in the views expressed herein. We would affirm the judgment of the Circuit Court of Kanawha County.