The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1881-06-18
SUPREME COURT.-IN BANC0.
January Term, 1881.
RACHEL LEWIS, ADMINISTRATOR, vs.. NEW YORK
LIFE INSURANCE COMPANY.
HARRIs. c. ]. JUDI & McCuLLY, J. j.
Opinion of the Majority of the Court rendered
by McCuHy, J.

Opinion of the Majority of the Court rendered
by McCuAy, J.
This is an action by the plaintiff, Administra-
trix of her late husband, Samuel L. Lewis, oil
Honolulu, TO recover SIS 1000 life insurance.
Trial was had in the April Term, 1880. with
verdict for the plaintiff. The defendant took ex.
~ceptions to rulings and directions of the Court.
which being sustained in part by a majority OF
the Court, a second trial was had. and to rulings
and directions given at that time, the exceptions
now under consideration were taken.
The following synopsis Of the bill will show
the points to be passed on:
The defendants excepted to the admission OF
evidence of conversations Of defendants agent
with DR.. McGrew, Testa, and Mr.. and Mrs.
Magnin, either before or after the risk was
taken
And to the refusal Of the Court to strike Out
said evidence:
To the refusal OF the Court to order nonsuit
on the ground of breaches of warranty in respect
to the applicants answers about his health, and
attending physicians, aud for fraudulent misrep-
RESERVATIONS and concealments. And to the
refusal, after evidence was closed, to direct a
verdict for the defendant:
To the instruction of the Court that the jury
might consider from the evidence admitted
whether the applicant was " disarmed " by
Berger's representations from naming any other
DulblCldu Indu DT. SuUlIllQR6 IDdI the QGIeQ-
dant Company is bound by the acts of its special
agent, and by his knowledge, and is bound by
full representations of Lewis (f made) to Berger;
that the defendant wonld be eStopped if any
representations of Berger to Lewis induced him
to fail to make full and true answers, from taking
advantage of such failure, and if the agent took
charge of the preparation of the answers and
suggested them.
The bill excerpts to the above in several forms,
and likewise to other rulings which it will not
be necessary to pass upon.
The testimony of DIR. McGrew appears by the
record to have been admitted if it should bring
to Berger a knowledge of the condition of Lewis
health, and the jury was instructed to take &C
count of it only as the evidence might be that it
was had before the insurance transaction was
completed.
Mrs. Magnin testiies to his precautionary re-
marks and inquiries, all of which were set aside
by Berger as being a matter of form, and that
g Lewis was well now and the examining
physician had passed him. and Mrs. Magnin's
testimony is merely to the same conversation. So
far as she heard it.
Testa's evidence is az to the conversation he
overheard between Lewis and Berger, and the
admissibility of this was distinctly passed on by
the Court in its former decision.
The testimony of information given to Berger
respecting the previous illness of the applicant
was clearly important and relevant. The one,
Magnin, was a relative to whom the applicant
referred the agent for information, and the other
was a physician, who had obser we'd Lewis while
attending members of his family, and who at
that time was one of the examining physicians
of the company, and his information, which was
of a general nature, to the effect that Lewis was
a weakly or delicate man, was given upon the
agents saying that he was proposing to insure
him. We hold that the agent would be charge
able with knowledge of any facts derived from
these sources. 1t was left for the jury then to
rOnaidar Inaamnah a q Rar0arfa raooIIoofiop IF
these conversations differed from the other par
ties as to the effect of them and the time when
had, what they would find to be true.
But the most important branch of the excep-
lions is that which is made in several forms to
the refusal of the Court upon certain evidence
to order a nonsuit, or direct a verdict for the de- |
PENDANT on the ground of breach of warranty, |
and on which the defendant now asks for judy
ment, Notwithstanding the verdict.
We make some extracts from the evidence
given
Mrs. Lewis says: "My husband died Nov.
9th, in 1879, at 20 minutes past II, NJ. He
appeared to be in good health. He did not
complain. He ate hearty, and was at his bust
ness up to the time of his death. From the
time Of insurance to bis death he ate we'll, slept
well, and was at his business every day. lie
attended a !" surprise party " Nov. 10th. He
appeared well, and enjoyed himself, danced and
waited on company retired that night at 2 A. NJ.
md got up as usual. not complaining of suffer-
ing and i'll effects. Nov. 29th be died appeared
and did not complain"
DIR. Cummings: 4" Attended him at hs last
(not meaning at his death) from Aug. 4th
70 Sept. Goth. 1 thought ne was well when |
eft him. He was, to all appearance, well.
Ques.-" Did you tell him he had any severe
illness p Ans.-"I repeatedly examined him
nd said to him l could not detect any local dis
sase. Have attended HIM for wears. Examined his
lrine for trouble with the kidneys-for what |
sould find. He said he bad pain in the kidneys,
md complained of pain in his back. l stripped
lin several times, and examined him by sounds
nd feeling. suspected aneurism, but was un-
BILE to find it" Quee.-" Was he a well man ?"
Thoughts him cured Ques.-' If
on suspected aneurism, would you say he was a
7ell man Pr Ans could not find it, and so
allied him cured" Ques.-'' Why did you not
your suspicion of aneurism to his
lmily? 2" Ans" 1t is sure death In the end,
nd useless to alarm a family. Cannot say how
ing under favorable circumstances he could live.
attended the post mortem examination. The
no lower vertebrae, by the pressure on them of
he aneurism, were dead. There was carries and
ieces broken away. l think to occasion such
D appearance would take some years. Cannot
y he would be likely to know be was sick.
be aneurism had burst"
DR.. McKibben, who examined Lewis for the y
Company, says: al made the post 9
ortem examination. Found a small aneurism ; :.
1all as a pullet's egg. There was carries of two .
one fourth of the body of the verte- .
ae. He must have had the aneurism more !;
an a year. His heart was perfectly healthy. E
neurism does not necessarily affect the heart r
least one of that size would not" :
DIR. McGrew Something serious was the
alter with Lewis twelve days before he died, if
died of aneurism. If cares of the spine re- :
from pressure, it would have caused pain,
It it would not have shown what disease it was. 7
metimes a man may live ten or fifteen years !
th an aneurism. Carries is a slow effect.
,uld consider a man with such an aneurism a