The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1880-11-27
THE PACIFIC
Commercial AbOertlser .
SATURDAY,, NO VEMBER q, 1880.
Supreme Court of the Hawaiian Islands,
July Term, 1880.
RACHEL LEWIS ADMINISTRATIVE OF THE ESTATE OF
SAMUEL LEVY LEWIS, DECEASED, VS.. THE NEW
YORK LIFE INSURANCE COMPANY.
Harris, c. j., Judd and McCuRy, III.
Opinion Of a majority Of the Court. delivered by
Judd, J.
tContinued from our last issue.)


Continued from our last iSSue.)
May on Insurance, Section zoo, sums the mat
ter up in these words " Always, however, to be
remembered is that class of cases where the in
ured has bound himself. hand and foot by a
stipulation that his application contains a just,
full, and true exposition of all the facts inquired
for, or its equivalent in q different form of words
and is to be deemed a warranty. In these, ac-
cording to the received Interpretation, no ques-
ton of knowledge, good faith, or materialit-
arises; 1t is simply a question of the truth and
fullness of the answers; and a want of either is
fatal. Such policies are practically no security
at all. The insured is at the mercy of the in
surer and if the applicant will be so imprudent
as to make such a bargain, the Courts cannot
help him" This being the state of the law we
are not to consider any question of the harshness
of this ruling. The parties have made their con-
tract in which the applicant warrants, the alb
solute truth of the answers made to the ques-
tions.
If he answered mo" to the question if he
had consulted a physician within the last seven
years and if the truth be that he had, whether
he remembered it or not, the law is settled that,
having warranted the truth of his answers, the
policy IS void.
The defendant was entitled to have his third
instructions prayed for given to the jury and as
it was not given, there must be a new trial, for
we cannot say whether the jury may not have
found that the answers made by Lewis, though
untrue, were made in good faith, and under the
instructions given they would be entitled to hold
that they constituted no breach of the warranty.
1t is quite within the power of an applicant for
insurance, where he does not know the facts in
quired for, to so state. He is only bound
by the answers he makes. The case of Insurance
Company VS.. Gridley, 100 U. S., GA October,
1879, is in point. The application set forth
that if any of the statements or declarations in
the application for this policy, and upon the
faith Of xpbiob it 10 issuad ShalI ha fOund in m
material respect untrue, then this policy
shall be null and void. In reply to a question
whether any of his relatives had any hereditary
disease, he answered No hereditary faint of
any kind in family on either side of house to my
knowledge" The company proved that twenty
years before the application was made, the appli-
cant's uncle had been insane for a year, and had
died in an insane asylum.
The Court say = The affirmation was restricted
and narrowed down to what the applicant per-
sonally knew touching the subject. 1t has this
extent no more. The company might have re-
fused to insure unless the qualifications were
withdrawn. Having failed to do this, such is the
contract Of the parties.
To make out the defence sought to be esta-
blished by the insurers, three things were, there
fore, necessary to the shown that the alleged
insanity of the uncle had existed, that it was
hereditary and that both these things were known
to the applicant when he answered the question:"
There are many cases reported in which In
Surance companies nave Incorporated INTO their
Policies or applications for Insurance language,
like the following: If any fraudulent conceal
ment or designedly untrue statement, shall be
contained therein, then the policy shall be void"
or where the applicant is instructed to 90 answer
each Of the questions on the first page to the best
of your knowledge and belief" or where the
warranty concludes" so far as the same are
known to the applicant. In these cases the
courts have uniformity held that the qualifying
language, controlled the effect of the warranty,
and the parties were held only to statements and
representations of facts which were within their
knowledge.
See National Bank VS.. Insurance Co., 95 u. S.
673, October 1879 So where words in expla-
nation are used in the policy or application
which shew that O strict warranty was not in
tended, the explanations will govern. Fitch vs..
American Popular Insurance Co., SO N. Y. 557,
also Hall vs.. Insurance Co., 6 Gray 1876.
We have diligently examined the application
in the case before us and we find no words quail
flying the language of the warranty in any res
pect. But it is urged that the question, '' has
the party any serious disease y is one to which
the warranty of absolute truthfulness does not
apply. Representations says May, Section
200, " should not only be true but they should
be full. The insurer has q right to know the
whole truth, and a lack of fullness if designed,
in a respect material to the risk is to
a false representation and is attended by like con-
sequence. This lack of fulIness is termed a con-
CdllllCn mDlCu 10 IL QCblHnCu uDo
withholding of some fact material to the risk
which the insured in honesty and good faith
ought to communicate to the insurer" In the
next section the learned author remarks IS OF
course, where the truth and fullness OF a state
ment are warranted, it is no longer q question of
concealment, but of the truth and fullness of the
In the case at bar the application contains
these words : | do hereby declare that the per-
son above named whose life is proposed for in
surance is now in good health, and does ordinari-
ly enjoy good health, and that in the above pro-
posal 7 have not withheld any material circum-
stance or information touching the past or pre-
sent state of health or habits of life of said person
with which the Trustees of the New York Life
Insurance Company ought to be made acquaint-
ed, - . . then follows the warranty which war
rants the truthfulness of the statements and re-
presentations in the foregoing application and
declaration. The 90 declaration - referred to is
that just quoted, wherein the applicant declares
that he has withheld nothing touching his past
or present health which the Company ought to
know. This is equivalent to a warranty of the
fullness of the representations made and con-
sequently there can be no question as to whether
there was concealment of any fact known to the
applicant. He has warranted that he has con-
cealed no material fact which the defendant ought
to know. This is the contract of the parties, the
legal effect of which is that if the-defen-
dant can prove that there was a material fact in
regard to the state of health of the applicant,
which he did not disclose because he was ignorant
of it, it is fatal to the plaintiffs recovery.
This is covered by the fourth instruction pray
ed for, and which was not given to the Jury.
New trial ordered. Messrs. Castle & Hatch for
defendant.
Honolulu, Sept. 25th. 1880.