The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-02-14
OPINION OF THE COURT BY eALBRAITH, J.

The motion for rehearng based the ground that "a
question decisive of the defendants right to trial. was
duly submitted the and overlooked IN the decision
ae in December 81, 1900, to w.t. that at the
trial of the the defendant offered to prove without stat
the object for which such proof offered that the PLAIN
aft prior to coming to Honolulu the State of California had
suffered separate and distinct losses from ire although
offer prove the OF those TRES and that
objection this evidence sustained by the trial court and
exceptions aken and that this alleged duly presented
IN exception 50 of defendants bill of exceptions
The question presented by exception 50 not overlooked
By the court although the for oveung the
in the opinion it possibly should have BEEN lhe
proof previous fires the State Of California offered
three separate 1 basis for hypothetical ques
tons expert witnesses 3D. without stating the object for
which offered; and 3D. proof OF fraud Objection
made the proof in each instance and sustained to which
exceptions taken These alleged presented IN
exceptions 81 and So of the bill of exceptions The
for overung exceptions 81 and SO set out at length
the opinion claimed that the evidence of previous
es admissible order that the might pass upon the
question whether these matera and if they
found to be material the policy void under that clause
tanned therein reading follows: This entire policy shall be
vod the insured has concealed misrepresened in writing
otherwise material fact concerning this
the subject thereof"
The evidence shows that the policies involved the suit
issued the oral application Of the plaintiff that written
application required requested and it not claimed that
the plaintiff asked any questions about these previous fires
anything about his past life misfortune accidents
gard fires Under these facts be properly insisted that
shee any duty incumbent the plaintiff volunteer
formation this subject the absence of specific inquiry
anything that would suggest to him that it his duty
disclose the history of his past fe any part thereof
The American courts make tar distinction Interpreting
contracts of marine and fire insure The strict rules applica
Bile to the former relaxed whe applied the latter The
reason given doing well ed by the Ohio Supreme
Court as follows In insurance the UNDERWATER from
the very necessity of his undertaking obliged rely upon
the assured and has therefore the right to exact full dis
closure of all the facts known him. which may IN any way
sect be assumed But in fire insurance such
necessity for reliance exists and the underwater assumes the
taking the trouble either examine inquire ne
sanno very WE'LL in the absence II fraud complain that 1t
turns out to be greater than he ANTICIPATED"
Protective ms. Co. q. Hd,ner, , -. St 472
that the question above pounded should be an
swered the negative. That in the snce of unusual ccn
affecting the subject the insurance the purposes Tor
obtaining the same the assured bound to disclose facts
not specifically inquired about That the plaintiff IN applying
0r the his property not obliged to volunteer