The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-01-18


ing the for trial The exceptions embraced under
this head, tow O. f. g. 10, II, u, 49, o. 80, 26,
80, 33 and 35 are overruled.
Second 1t is contended that the defendant denied the
right of introducing in evidence stenographer transcript of
previous contradictory statements made by Mr. and Mrs Mer
court of examining them thereon Although the ruling of
the may have been influenced by the de-
cepve method employed by defendants agent getting this
statement the record shows that the tenograher who
at the examination made transcript of his notes of
such examination and testified concerning such transcript
Exceptions 49, 21 not taken and are
therefore overrued.
Third The defendant complains of miscellaneous rulings
evidence and under rule announced herenbefore
of opinion that the discretion vested the trial
opprssvey abused Exceptions &c. 81 49, 49, AZ and
therefore overruled
Fourth 1t contended that the denying defendants
ton for nonsut and modification of the instruction requested
by defendant exceptions 81 and The
motion for nonsu the policy covering the of the
building based the ground of misrepresentation of the
ownership of the property that considerable portion of the
property in the proof of loss belonging Mr. Mer
rcourt fact the property of his wife, and the motion
the policy covering the house the ground that the
plaintiff failed furnish defendant verified plans specifca
tons of the building destroyed The stipulation the policy
which required the assured loss furnish the
for the benefit of the company and compliance with
the might be waived by the by its authorized
acting within the scope of his authority The evidence
shows that within few days after the fire plaintiff at the
of the defendants agent delivered plans
budng that these accepted and retained by
agent and were not returned to plaintiff he notified
that they not sufficient satisfactory until months after
wards This substantial compliance by the assured with
this stipulation and waiver the part insurer to insist
a strict compliance
can agent duly authorized may bind company by
express waiver of proofs "and an agent intrusted
with policies signed blank, and authorized fill
deliver hem waive proof of loss Joyce Ins vol par
5S3; Queens I. Farmers etc, ms. Co. 81 Bar 57s
The instruction asked by defendant follows eff you
find that the assured did truly his interest the prop
ery covered by either of the policies by stating that he
owned property which in fact belonged his wife, then such
policy is void and the plaintiff recover This mod
flied by the court by inserting after fe the following phrase
and did SO deliberately knowing the be false and
modified given.
Mr. Justice Strong speaking for the Supreme Court of the
United States this subject said ct true the policies
stipulated that fraud false the part the assured
should work forfeiture of all claim under them The false
swearing referred to such may be the submission of pre-
iminary proofs of loss, the examination which the
assured agrees submit But does inevitably follow from
the fact that there material discrepancy between the state
made by the plaintiffs under oath their proofs of loss
and their when esng the trial that the former
false justify the assuming and directing
verdc for defendants 1t may have been the testimony last
given that the made in the proofs
of loss may have been honestly made though subsequently dis
covered to be mistaken 1t only fraudulent false swearing
furnishing the preliminary proofs the examinations which
the insurers have right require that avoids the policies and
it for the jury determine whether that false
fraudulent" ms. Co. Weides, IA Wall o. S. 3S23o3
Whee the preliminary proofs prepared with the advice,
aid instructions of the company authorized agent such acts
will operate waiver of defects therein for 1t party
plies with the agents Instructions cannot be required
And where the assured good faith and the agent with his
assistance prepares the proofs they do not conclude the
sured So the agent aids the assured in preparing such
proofs and the company retains them without objection for
four months and until suit is brought upon the policy, the
company cannot object" Joyce, Ins vol 5s7 Sims