The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1881-06-18
ubt that in this view aneurism is a serious

The revelations Of the post mortem examIna-
ton now demonstrate that on the. 18th of No
vember, Lewis was the subject of the aneurism
which was then within II days of the crisis OF
rupture, to kill him as surely aud almost as
quickly as a decapitation. But by his answers
be warrants to the Company that be has no seri-
Gus disease, or as we may read 1t specifically, that
he has no aneuIism. This is a warranty, un-
qualified, that he has none In fact. All of the
authorities are that a pure warranty Is not re-
leased by the ignorance of fact of the party
making it. This was not a warranty that be had
no serious disease (no aneurism) to his knowl-
edge. The form of application of the defendant
Company offers to contract for life insurance
when the party will warrant that he has no
serious disease. Now, if Lewis had made this
insurance one, two, or three years earlier, there
would have been room to doubt if his aneurism
then existed, and this case would have taken
another course but we have said that the facts
of this case are a demonstration. There was a
breach of warranty, and the defendant was enti-
tied to judgment, unless 1t is made to appear
81 that the representation was not the statement
of the plaintiff, and that the defendant This agent)
knew 1t was not when be made the contract and
that it was made by the defendant, who pro-
cured the cther's signature thereto" We quote
the language OF our previous decision.
We have applied this principle wherever the
testimony sustains it. The answer, that he had
no attending physician, was ruled to be Berger's
and not Lewis's, for Lewis had mentioned the
name of DR.. Cummings. The answer, no dys-
pepsia, is proved 20 have been written at Berger's
Interpretation that his d~yspeptic symptoms being
transient and not serious, need not be mentioned.
And the answer, = no. to question Ii, = has
the party ever been seriously ill ?" was likewise
allowed to be considered by the jury if it had
not been made by Berger, upon his remark to
Magnin that it did not matter as he was well
now. These were liberal rulings in favor of the
plaintiff. There is no testimony as to the filling
up of the answer to the query now under consid.
Grafton. But as Berger had no knowledge of
This existing serious disease, or of any, we cannot
infer that he waived the truth in this case, and
wrote an answer contrary to Lewis's statement,
Lewis himself knowing nothing of the fact, and
therefore not being able to state that he had a
serious disease. The plaintiffs own testimony
is to her husband feeling very well those days.
Mr.. Berger testiGes that when he met him and
introduced the subject of life insurance, Lewis
put both hands on his chest and said, " | am a
healthy subject" lie is clear that Lewis be-
lieved himself well, and was ready to warrant it.
We ought, in examining the testimony in this
important part of the case, which determines
whether the assured is liable for his warranty as
it appears on the face Of the papers, to take ac-
count of the desire of the subject of insurance
to rank as u well man. lt is only after proofs
which cannot be contradicted that men in middle
life admit to themselves the existence of disease,
which is to cut them off. But Lewis does not
appear to have been advised by any physician
that he had a disease. On the contrary, in the
pride of health, he puts his hands on his chest
aud says he is a healthy subject-and he proceeds
to warrant it to the Company, by answering
90 no " to the question if he has any serious
disease.
By the terms of this application this is made
an absolute warranty. 1t is not qualified by the
applicants good faith, knowledge or ignorance.
Upon the warranty that he has no serious dis
ease at the date of the insurance, the Company
makes its contract, conditional that a breach of
the warranty makes the contract void.
Upon the testimony offered there was no room
to question that there was a breach of warranty,
and the jury should have been instructed to bring
a verdict for the defendant.
We have, so far, confined the discussion of
the breach OF warranty to the negation Of any
serious disease. But question IA is, 50 Is the
said party now in good health ?' to which, In the
application. Lewis answers yes, corresponding to
his assertion that he was " a healthy subject"
He therefore warrants the other contracting
party that he is in fact in good health. Is this
qualified ? 1t is not by the applicants
answer, as it might have been by the answer
yes, SO far as L know, =" or 8 yes, in my belief
or opinion" Such an answer would then have
raised the question of the applicants good faith,
or the Company might decline to take the risk
the absolute guarantee. But if it is
that the warranty was made III good faith,
although what was warranted was not a fact,
then IL may be asked on what principle it shall
Oe saIu InaG the company snail De the loser,
rather than the benefciaries of the policy. If it
be claimed that the declaration of good health
should be understood always to mean good
health so far as the subject of insurance knows,
and that no man may know what hidden disorder
nav be preparing to cut off his life, and there
he cannot give more than a decla ration ac-
,ording to his knowledge, the answer must be
hat such are not the terms, and that if it had
been the intention of the parties to make the
with that qualification it would have
been stated in fitting terms. 1t would have been
ust as easy to make the question read, " are
you now in good health according to your honest
opinion ? or for the party answering to have
declared So yes, so far as l know" There can
De no question, we think, but that a contract on
he above terms would be a different one from
hat which was made, and equally there can be
10 question of law, that the parties are held to
he contract they have made, and not to another
which they might have made. The warranty of
health was asked for by the Company and
iven by the applicant, and the contract made on
hat condition. In a few days the fact was dis
losed that the applicant had at that time an :
rganic, mortal disease. The warranty of good !
ealth was therefore broken.
AS a verdict for the defendant is the only one
would be authorized upon the law and the
ndisputed facts of this case, we think the proper
purse now is to order Judgment for the defend
ut non ObStaRte Ueredicto, and it is so ordered.
A. FRANCIS JUDI,
LAWRENCE MCCULLY. .
Messrs. Castle g. Hatch for Plaintiff. A. S.
and B. H.. Austin for Defendant.
Honolulu, June 9th, 1881.
This case was tried at the July Term, 1880, n
nd a verdict given for the plaintiff. A motion =
as made to set aside the verdict and the opinion
f the Court was filed September 25th. granting
ne motion and ordering a new trial. From this
,inion l had the misfortune to dissent, Having
nee well reviewed my reasons given at that
ne, l see no reason for changing my opinion
ID inasmuch as 1 then thought that the verdict R
ould not be set aside, and, a new trial granted,
follows that | must now respectfully dissent
1m the conclusion which the majority of the A
have reached.
CHAs. Q. HARRIS, G.. j.
Honolulu, June 9th, 1881.
HARRISON & PEDDLER, 5
DRICK NJ STONE MASONS AND CON-
TRACTORS AND BUILDERS,
King Street, Honolulu, with w. NJ. Gibbs, -