The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1880-11-27

making a careful and scientific examination of all
applicants for life insurance and they are far
better able to detect lncipient disease, than the
! subject, in most cases. l think these statements
are not understood or intended by the parties as
warranties. | think the Judge at the trial, pro-
perly held that the inquiry was one of fair and
honest dealing on the part of the applicant; and
that the statements concerning the condition of
his health were not warranties."
[ wish always to draw a distinction between
the answer to the questions which are particular
ly placed and the answer to tue general questions
Many decisions have been made in cases or those
who have answered that they had not consump-
ton and the event has proved that they had.
Now although such persons may not know that
they had consumPtion, yet any one must know
that he had the symptoms of it and vas therefore
bound to state them. By the evidence it appear
that this deceased, when he was asked if he had
had any serious illness, replied that he had had
an illness 50 serious" enough to induce him to
repair to California for his health, and to take
medical advice here. he did not tell them he
had the aneurism of which he died, for he did
not know it himself, nor did his medical advisers
know it he stated he believed himself well then,
and his physician believed him well. Ia
Hutchinson vs.. The National Loan Insurance
Society, quoted in May on Insurance 1902, 7 CT.
of Sess. Cas-. (Scotch) 467, "a warranty that
the insured had no disease or symptom of disease
was held to import only that, according to the
knowledge and reasonable belief of the insured.
there was freedom from any disease or symptoms
of disease material to the risk as in Jones
VS.. Provincial Life Insurance Company, quoted
as above, it was said that if the assured honestly
believed that these attacks had no tendency to
shorten his life, his failure to mention them
would not avoid the policy. What other persons
of intelligence do not know or believe or appre-
bend cannot reasonably be expected of the in
sured. And what he cannot be expected to know,
he cannot be considered as culpable for not
knowing and what he cannot be expected 20
apprehend. he cannot be bound to communicate
and in not communicating any such fact, he can
not be considered as concealing it even mad
vertently, much less wilfully.'' In the cases
relied upon, for an opposite view, facts were con-
cealed which were known actually or presump-
lively 6 { to be material y and none of these cases
actually decide, upon the facts, anything more
than that the assured was bound to communicate
all facts known to him, and by him believed to
be material, presuming that he knew and be-
lleved what men of ordinary intelligence know
and believe. In this view the cases are recon-
Gilable." Again at 1926, the same author says
s'As to the ordinary question whether the applI-
cant has ever had any serious illness, as the word
serious is a relative term, involving a question of
degree, and it being certain that there are all
degrees of illness from the slightest, about which
no concern is felt by anyone, to the most aggrava-
ted, attended by the most alarming Development
and the most serious consequences, about which
there is everything the highest degree OF concern,
and as even a disease regarded in its course as of
the most trivial in it's character may be followed
by the most serious results, it seems to be a ques-
ton of opinion, the expression should be based
upon intelligence and good faith. What one
may call serious, another might not and where
there is no test furnished by the insurers by
which the applicant can know what serious ill
ness means, his failure to mention one which he
does not regard as serious works no forfeiture
of the policy, though in fact the illness not men
toned was a serious one. Life Insurance Co.,
e Rob N V (Snnr Or \ 567 In such Caaoa
the rule seems to be that if the injury call for an
answer which involves a matter of opinion, the
applicant is answerable only for the honesty of
his opinion, although the answer be untrue, in
fact, and substantially the same rule was laid
down in Hutchinson VS.. National Loan Insurance
Society, where the inquiry was whether any
material circumstances touching health or habits
of life with which insurers ought to be made
acquainted was withheld, and it was decided that
the answer was only q warranty to the extent
of the knowledge and reasonable belief of the
insured" See May on Insurance 1896, p. 234.
| have preferred to use the words and quotations
of this author, because they express SO exactly
my view of the law upon this subject. In the
case of Duckett VS. Williams, it is certainly
ruled that the policy would be void although
the representations were innocently made by
the insurer but the representations were not
made by the man himself. BY which l mean the
subject of the insurance was not the applicant,
but the statement was made by the trustees of
the Provident Life Office seeking to reinsure the
life of one Stephenson, they being not shown to
be aware of the iIl-health of Stephenson, though
Stephenson was in ill-health at the time. The
difference Is very obvious between a man who
honestly says that he himself has no serious ILL
ness of which he has no symptoms, and the man
who states that a third party, whose symptoms he
can not and does not know, is in sound health.
When a person answers that his health is
good up to the present time, it does not import a
perfect physical condition, but does import only
that the applicant is free. from ostensible, known
or felt symptoms of disorder, and the answer
warrants that fact and that alone, and does not
warrant the non existence OF latent and unknown
defects" See May on Insurance, 1895.
Therefore it appears to me on principle as well
as authority, that the instructions to the jury
were correct.
CHAs. c. HARRIS, G. j.
Hon OluIn Saotamhar 05tb 1890 10