The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1897-06-26

Of am
communications TO I@nder perhaps motion might properly
have been made strike party should not be al
lowed TO select such evidence him and exclude the
On particular point especially where, this instance the
evidence all written the form of deposition and
known counsel before read Jury lit may
be added that if all evidence contained in Iande
deposition upon this point had been excluded
aided the defendant for there ample other proof
delay in forwarding the application due the agents neg
There proof that the application
until between and eight weeks after received This
alone would have raised presumption of negligence ~ w
Carter also testified follows: MIR Brennan stated ton the
occasion OF his offer return the premium in of in
rucions from the defendant) that the application had been
returned to him by the doctor three days after the appca
% and that the remained his desk for some time he
said in order batch applications send forward the
time. The day the mail left he looked the application
and that inaccuracy
his report didn't forward by that mail he thereupon
back the doctor corrected lay upon his table
time he stated until could another and when
about forward the he noticed that the doctor had
filled in date, and forwarded by that mail He
waited again for batch and forwarded the 9TH day of
January, the day before Mr. Carriers DEATH This testimony
unobjected and uncontrolled.
The fourth exception taken the admission again de-
PENDANTS objection, of the applications of other persons,
which dated November and ; 1871 respectively that
shortly prior the date of the application question: and which
made through the and forwarded at the
time Jan 5 1895 These applications WERE as by
Mr. Patty defendants general agent for the Hawaiian Islands,
part batch of applications of different dates presented
him by Brennan the time January s. 1895 They
admissible for the purpose for which they introduced
show that because Brennan negligent in of
these applications he probably negligent respect the
application retained in order that batch might
be together No attempt made show that the two
applications objected retained for other The
circumstances under which these applications We're offered IN
evidence and objected do appear Mr. Patys testimony
upon this point apparently not objected to-
exception the admission, against de
PENDANTS objection of letters written by Mr. anders
Mr. Patty regard to the matter III controversy ms exception
much relied upon and in opinion if
the letters question admitted their contents
prejudice the defendant especially in view
the other evidence in the They contained substance
the defendant had declined the applications
instruction return the premium pld and take up the con
donal receipt; that the defendant had teeaphed
asking for explanation of the delay forwarding the batch of
applications: that managers companies Fran
defendants prominent attorneys there confirmed
decision hablty
regret at the unfortunate circumstances of the
The sixth exception taken the overrung of the de-
fenedans motion that the plaintiffs be nonsued the grounds
that the evidence did support the count which they Relied
of action had been proved This exception
to the merits OF the case and raises the question whether
cause of mind that the
relied 1t is clear that the defendant could
held either of insurance contract to
insure under the circumstances of this The count in
tort negligence of the agent failing to forward the
application diligence and is based the theory that II
the application had forwarded within reasonable time,
been accepted and the policy would have been
ed for term insurance prior to the applicants DEATH other
words but for the agents negligence the applicants LIE
been insured for $4,000 which the plaintiffs would
be entitled under the of the policy that would have
issued but which they deprived OF because OF the
negligence of defendants agent We need not set out all the
evidence show that the agent had performed his
duty, the would have been obtained before e
applicants death There is and be question that the
jury fully justified in finding from the evidence lhe
questions raised questions of law whether assuming
these facts, the defendant is liable
I'm the first place argued behalf of the defendant that
the amount applicant for the insur
and that there consideration for the term insurance
This distinction does not appear from the evidence 1t stated
the receipt that the amount paid deposit upon the
application insurance and the application made for
term we'll permanent insurance 1t may be that the
consideration for either kind of insurance.
but that was stated in the receipt "deposito
consideration according circumstances 1t
may also that the application for term insurance was mere
be Withdrawn before accepted,
the defendant bound It, If So the
equally of the insurance But these questions
maera The question there duty to forward the
applications there consideration for what might be
done in case should be forwarded The action upon