The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1897-03-24
OPINION OF THE COURT BY WHITING. J.

ton
OPINION OF THE COURT WHITING, J..
plaintiffs brought policy of fire nsur
loss by fire against the defendant company
the First Circuit Court and verdict rendered In their
favor. The policy made out to one Sing Moi kee,
Chinese the island of Kauai the OF the
insured property loss if payable plaintiffs The policy
contained conditions relied upon by defendant which
follows:
No T. profit advantage of any kind to be in
cuded any claim for loss damage under this policy and
the be any respect fraudulent, if any false au-
tory declaration be made used in ii the
fire be occaoned by through the with the
knowledge of the insured all benefit under tins
policy is forfeited
No. Any material msdescripon of any property pro
posed hereby insured of any building place which
property be insured is contained * and any mis-
any fact material be known
for estimating the risk, whether the time of efecng the
afterwards renders this policy void the prop
ery affected by such msdecpOn, misstatemen omission
respectively
The defendant presents three exceptions by his BILL
At close of plaintiffs case defendant moved for
nonsu which motion denied.
The defendant requested the instruct the jury
follows
he policy in this case provides that no profit advantage
any kind be included any claim for loss damage
under this policy and if the claim be any respect fraudulent
if the fire be Occasoned by through the
with the knowledge connivance of the insured all
benefit under this policy forfeited" 81 therefore charge
believe that Sing Moi Kee, the time he made
the proofs that his stock of goods de
$4,000 knowing that value
was not above S21OO and that with
deceive the company, the claim faudu
and the company absoved from paying any
loss and your verdict should be for the defendant"
This request refused by the court
The defendant also requested the the fol
lowing instruction, which the court also refused:
IF you believe that the time the application for the policy
made Sing Moi Kee through his made material mis-
Mr. Walker the value of his stock which he
about insure, if he represented of the value of
about $4,000 knowing at the time that was not worth more
$4,000 your verdict should be for the defendant
charged the upon these points involved the
exceptions follows:
Gentlemen of the Jury | charge you that if you
evidence that the insured made material mis-
representations to the the relied upon
representations in estimating his risk and induced
thereby the then your verdict should be
for the defendant In other words if YOU believe that Sing Moi
upon making application for the policy Overated the
value of the property be covered and that the insurance
company in estimating the risk relied such statement and
induced thereby grant the insurance. then your verdict
should be for the defendant Such msatement of overva
forfeiture of the right of recovery
be charge YOU further that condition of
policy if the claim any respt be fraudulent any
benefit under the policy forfeited y statement made under
the claim constitute fraud and have the effect of vtiatng
the contract must be wtuy made with respect to material
with the intention thereby deceive the insurer The
of value in the claim does of itself
of law void the policy 1t question of fact you
consider and in order have the effect of multiplying the
policy you find the fraudulent Direct
and positive proof of fraud required may be inferred
proved by the evidence and the
all the evidence in this that Sing Moi Kee
fraudulent the claim, then instruct you
your verdict should be for the defendant company If
you believe that the statement not fraudulent in these
instructions defined then verdict should be for the plain
tiff
The whether the representations made by the insured
application for insurance and in his of loss
false and and knowingly made with
deceive the insurer left the jury of the
dence though dcoses evidence of
property does that the weight of the
evidence upoa point shows fraudulent clearly
in setting aside the verdict The first letter
stated the value of the property including the
cant real estate to be $4,000 The second letter values
the property $4,000 but does specifically mention the
real In this 1t might well be
the applicant thought that the agent of the insurer would
together The