The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1895-03-19
MUST PAY INSURANCE
Judge Hanford Denies New
Trial 10 Mutual Life.
The sELsY CLAIM NsNsWERED.
etore-orners and Irnprovers Prepared
TO Buy Tide Lands Maple Has
Trouble Over His Pledges.

e tna fsIli amount prayed sen $4,000. I.
wi.I BE- remembered tina. Mrs. Se3oy sued
for ne. husbands life Insurance, while
the eornpany'a defense was tina. Mr.. Sssby
had not answered the questions relative
10 his health ard ailments honestly. The
decision In fall ix az follows:
ssThe answer in this cause contains no
denial Of the allegations OF the complaint.
except the allegations that the plaintiffs
husband !n his lifetime fgiiy complied
vim ali the requirements and performed
At the conditions OF his contract xith the
Defendant. 4 mere general denial OF such
q geaeEaI statement raises no issue. ard
according 70 the rules OF pleading all shs
facts well pleaded In the complaint are
admitted I can find no fatal defect In
The plaintiff 5 case as set forth In her COM
pgainE therefore she is entitled to a iudg-
fnent on the pieatiBgs for the full amount
derna aided unless the Affirmative aiiega-
tlons OF the answer are sufficient. IL true.
10 avoid liability ON the policies. The slirn
and substance OF said affirmative defense
n this: The husband OF plaintiff In als
sprllca ton for the insurance warranted
certain statements OF fact concerning
himself the policies sued on were issussi
IA consideration OF said warranty and
the warranty IL part OF the contract,
there was a breach OF the warranty. for
certain specified statements made IN said
xsat the defendant has returned or ten
dersd return OF the premiums. Fraud
IL rot charged. and II IL not alleged that
the defendant haa been damaged by
breach Of the warranty. nor that IL made
IA agreement which IL would not have
consented to If the truth had not been
given In said APPLICATION And IL Is not al
legged that by any stipulation In the APP
piieation. or IN the policies. or otherwise.
the parties agreed or consented that
breach of the warranty should. ipso fgctn.
nuliify the policies. or entitle the defend
ant to claim a forfeiture of the premiums
paid In fact. the application and poll
ctes Introduced In evidence on the trial
show shat no such stipulation Is contained
ttsrelk The policies. which were the
only written evidence of the contract de-
Iivered To or retained by the insured. are
free from the mass OF verbiage found In
many forms of life insurance policies. and
quite liberal in terms. IL Is not unlikely
that the advantage OF policies In such
form was urged upon the plaintiffs hns-
band by the defendants soliciting agent
as an inducemeut for preferring This COM
pany over other life Insurance companies,
and the particular plan or insurance Sc
lected over other pians-
''rhe theory OF this h that the warranty
Il like condition precedent. and that
Notwithstanding the receipt aud reten-
ton by the defendant OF the premiums
and the issuance OF the policies. and at
though tho part.ss did not incorporate
into their contract stipulation 10 that
effect. mere breach OF the warranty
renders the policies void alb tnitio.
"A warranty as TO any fact. which be-
comes an integral part OF the basis OF a
contract. differs from a mere representa-
tlon OF such fact. In this II preciudes
any controversy as TO the materiaitty OF
4sz.s,
Is not ground for avoiding contract.
unless the partly to whom 1t Ia made re-
He's upon and la actually induced by IL TO
enter into an agreement, or consent to
terms Instantaneous 10 him. Keeping
this distinction in view IL Is plain that
The facts pleaded would be sufficient TO
snliue the defendant to- rescind the con-
tract, r.. after being apprised of the
breach. IL had with reasonable prompt
ness elected to reseind. instead of re-
taIaing whatever profit or advantage the
contract afforded. But the same facts
would afford no ground for the insured
70 treat the contract as nudity. He
could not. against the will of the defend
ant. withdraw his application for insur-
ance and compel return OF the money
paid as premiums Authorities are numer-
Gus holding that the insurer may waive
q breach OF warranty and abide by the
anee with elementary principles or the
law. May on Insurance, 81 ed. sections
t59-'0i. Els; Insurance Co. VS.. Raddin. 10
L. &, 1916
Assuming the answer so be true. n
question OF law arises whether the policy
Is absolutely void or only voidabie at the
election Of the insurer Since the In
surer may, In case like this, waive a
breach Of warranty IL IL obvious that
his s,as sri
rortunty 10 wiave. take advantage OF
his own wrong by avoiding the contract,
hence the validity Of the contract depends
upon the viii Of the insurer rather than
upon any inacxihle rule OF law. by this
test the contract as IL Is see forth In the
rleadings Is shown TO be one which must
necessarily be- classed as voidahie. In the
argument and brief of counsel for the de-
PENDANT many cases have been cited in
which courts have held in actions upon
Insurance policies that the right to reeov-
er Is barred by breaches of warranty But
On examination | lind that the leading
cases OF Jennings vs. Chenango Mut.
ms 90. ; nenio e. and fefrries VS. Eco
nomicsi Nut, tife lns. Co - Wall. i7-57,
tbs parties fixed the penalty for a breach
az warranty by stipulattnc In the contract
THAI In case Of the violation Of any OF the
conditions upon which the same ware
hased tho policies should become null
and vott. and IL ia probable that in other
cases tho facts were simlna. - that the
courts Ia deciding them failed 20 take
note Of the particular stirGlatiens 90
which effect was given I'm eas@s which
were supposed to be precSdeats. and fol-
LEVIED. | fiud also that tu s,le light OF
later decisions by the supreme court OF
'hs CuNef States many 81 these deci-
sians must he regarded as erroneous.
Fer example, In tae csss OF Cooper vx.
Farmers Mutual Fire Ius Co. - Pa ST
- Mr. Justice Strong, IN She opinion Of
ne court, c!'cs ana follows Jennings vs..
tAsnSnSo Mutual TEs. 60. supra, holding
taaf paroi evidence Is not admissible
- show that che insured truly informed
'na agent 81 tho insurers OF particulars
Neieh the agent had incorrectly stated
N fhe app}. alton written by him for
TIE 'nsurs ;. the statements In the
application having heen made vearranties.
Atd II ihe case OF American fuS,
%. ~ Malone = Wall. iss the same
ieafaei tastlce wrote the opinion or tie
supreme court - the United States. IN
~R'ch was ruled that p&rol evidence -
f2o~ th@f ere insured made tFpe answers
70 questions ia the Application II the ages
o tee inSur,~s, different from the an
s"*Fs as writes by the agent was ad-
H,'SNioie IN an a t3oa On the policy not
NNas'antiag 'he fes, that the answers a.
WRITER fv m Assert were subsequently
70 io fae i3s tcss act voluntarily signed
ey him :.
/ 90 ret hra e. nuy az the authorities
FGASrn e}vra fer d@ra~tare from eie-
n'T"iATy principles 81 order 70 relieve an
insurance rofuiar- cf the 0hlfrsEksayz 70,
.@S according e Us 1roraise while If re-
~. .s.aS th> t"ousy Iaid apcn tha faith OF
feat Promise
TIE case - New ~srl Y{s. rn.u~sne.
70 -