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

who was the medical attendant? Estate his
name and residence). The verdict OF the Jury
determines that though defendants agent wrote
& no in point of fact, the deceased answered
that he had been sick and had gone to California
for his health that be had been sick here ana
had been treated by DR.. Cummings, but lett well
at the time of his application. The same eVi-
dence tended to establish that the defendant :
agent made representations as to the Character
and effect of the statements in the application
The deceased had none of the complaints specially
enumerated in the long list set forth In the appil-
cation, and died of an aneurism. Ihougn Dr'
Cummings said that he suspected aneurism, he
did not communicate any such Suspicion 20 the
deceased, or, as far as it appears to any OF his
friends. DR.. Cummings himself testified that he
did not Know what was the matter with him (;
that the deceased suggested kidney disease. that
the Doctor examined the urine and could not
name the disease that he asked him how ne
was, when he returned from California and ne
said that he was we'll and L thought 80 too.
Now it must be conceded if the insured made a
fair exposition of the previous state of his health
and the defendants agent assured him that,
within the scope and intention of these questions,
he was not seriously Ill and so wrote 1t down,
the company is bound by the acts and statements
of their agent.
Il Is said that the Court instructed the Jury
that in answering the questions, the insured was
bound to use the utmost good faith, but was not
bound to represent what he did not know, and
did not remember and it is said this ruling is
wrong.
The word remember was used with refer
ence to such facts as would ordinarily be deemed
immaterial, and was therefore merely used IN
cidentally for there was no question regarding
the mans memory. 1t was used to illustrate
the idea that a man questioned upon his i'll
ness, during u period long past, could not be ex-
pected to remember and speak of small matters OF
indisposition such as are not usually called sick
ness, such as casual sore throat or headache. L
apprehend this will be found to be a correct
ruling in that connection. .
The words that the applicant was not bound to
represent what he did not know were used with
regard to the expression ' serious illness"
The law seems to me to be we'll summed up in
May on Insurance 1902. 1t has been held that
there is no concealment if the fact omitted was
believed to be immaterial by the applicant.
The question was whether the applicant had had
any sickness within the last ten years, and the
answer was that he had had 6 pneumonia" but
said nothing of q 81 slight attack of chronic phar-
yngitis" it was held to be no concealment, as the
party was not bound to state such facts as would
ordinarily be deemed inmaterial, such as that he
had had q cold, or a diarrhoa, or an irritation of
the throat, not fairly embraced in what is popu-
larly understood as sickness"
1 have said the word : remember " was merely
incidentally used, because there was no question
in regard to the mans memory, it being averred
Oh Ou6 uduu, IUdL IHC ucCcdSCu ~ tdlC Guhl
he had no serious Hines, and had consulted no
physician, and on the other it was maintained
that he not only remembered but stated, that he
had gone to California for his health, and had
there, been under the care of a physician whom
he named. I conceive that the whole of the an
swers, written by defendants agent, are con-
trolled by this testimony.
But it is said that if he answered : no " to the
question whether he had a 81 serious disease >;
and had one at the time, whether he knew it or
not, this untrue answer, Though made in honesty
and good faith, is a breach of the warranty and
renders the policy void.
With great respect 1 do not think the law can
be so holden, when applied to questions of this
general nature, such as had the party been seri-
ously i'll. What is the present and general
state of health Of parties referred to in queries
l6, II and l8 as for instance take the 10th
question? Are the parents living?"
This applicant is insuring here at Honolulu,
the parents if living at all are residing in a dis
tant country. He answers thus, his father is
living at the age of 81, his mother at the age of
Ga. Now suppose that the next mail brings in
t~elligence that one or both of his parents had
deceased some e ks before, can it be said that
his policy of insurance was void because he had
warranted them to be alive at that date? The
18th question speaks of the health of three
brothers and -four sisters as " good, !" all of them
being in a distant land and if it should after
wards be discovered that one or two of them were
sick of a fever at the date of the application, un-
known to the applicant, would his policy be void
because he had warranted their health. In the
case of the Insurance Company VS.. Wilkinson,
18th Wallace, one of the questions to the appli-
cant was had she ever had a 9 serious personal
injury ?" to which the answer was s. no." She
had fallen from a tree ten years before. The
Court says. "The accidents resulting 10 per-
sonal injuries, which at the moment are con-
sidered by the parties I" serious" are so very
numerous that it would be almost impossible for
a person engaged in active life to recall them at
the age of forty or fifty years and if the failure
to mention all such injuries must invalidate the
policy, very few would be sustained where
thorough inquiry is made into the history of the
party, whose life is the subject of insurance.
There is besides the question of what is to be
considered n serious " injury at the time. If
the party gets over the injury completely, with
out leaving any ill consequence, in a few days,
it Is clear that the " serious " aspect Of the case
was not a true one. In May on Insurance will
be found the following note appended to S156.
d" Though we have treated the several subjects of
warranty, representations, and c~oncealment in
separate chapters, it will be seen that these sub
jects are so nearly allied, that cases illustrative of
each have much in common, and if it were
material it would be difficult to determine under
which chapter to arrange them. For the most
part a case in either chapter will illustrate the
others. as the several subjects are almost invari-
aDly discussed toSetner. AND again, IT q
warranty be a statement of facts it must be liter
ally true"
But the question whether the disease or accl-
dent is serious or not, as has been shown above in
Wilkinson's case, is a matter of opinion until the
final event has demonstrated Its seriousness. In
Denison vs.. The Thomaston Mutual Insurance
Company, one of the questions to the applicant
was about the distances of other buildings from
the premises insured. The answer was IS east
of the block are small, one-story wood-sheds and
would not endanger the buildings if they should
In point of fact, these wood-sheds were within
feet of some two-story wooden buildings
on another street, which having taken fire com
the fire to the plaintiffs house. Now
the condition of insurance was as usual in fre-in-
surance, that no circumstance material to the
risk is withheld, which appears to me to be a
very similar question to that in life insurance
policies which is under consideration, the Cour-
says, 50 in the case at bar, it has now been rent
dered undeniable, that the burning of the two
story buildings on another street, endangered the
house and to the interrogatory pro-
pounded it would now seem that the existence Of
those buildings might with propriety have been
stated. But this does not prove, that, before he