DISSENTING OPINION OE
CHIEF JUSTICE HARRIS.I think a new trial should not be granted. It being determined that the instructions to the jury, to the effect that the burden of proof was .on the defendant company were correct; and further, 'that the ruling of the Court was correct, in admitting testimony with regard to conversations between the insured, now deceased, and the defendant company’s agent, the whole case was for the jury.
It was in evidence and admitted the defendant’s agent wrote the answers himself. The testimony of Magnin and Testa tended to show that the deceased made answers, with regard to his health, which do not appear in the written answers; as for instance that he had been sick a short time ago; that he had employed Dr. Cummings, a medical practitioner in this town; but it does not appear that the defendant’s agent saw fit to examine or thought it necessary to obtain this physician’s certificate, and the jury have determined by their verdict that though the defendant’s agent *318wrote down that tbe deceased bad no medical attendant, in answer to tbe twenty-seventh question — and in answer to tbe tweDty-eighth question, that be bad consulted no other medical man, yet tbe answer in point of fact was that be bad bad a medical adviser, Dr.. Cummings. Tbe thirteenth question is as follows: “Has tbe party ever been seriously ill; if so, when, with what complaint, and who was tbe medical attendant; state his-name and residence.” The verdict of tbe jury determines that though defendant’s-agent wrote “No,” in point of fact, tbe deceased answered that be bad been sick and bad gone to California for bis health; that be bad been sick here and bad been treated by Dr. Cummings, but felt well at the time of bis application. Tbe same evidence tended to establish that tbe defendant’s agent made representations as to tbe character and effect of tbe statements in tbe application. Tbe deceased bad none of tbe complaints specially enumerated in tbe long list set forth in tbe application, and died of an aneurism. Though Dr. Cummings said that be suspected aneurism, be did not communicate any such suspicion to tbe deceased, or, as far as it appears to any of bis friends. Dr. Cummings himself testified that be did not know what was the matter with him; that tbe deceased suggested kidney disease; that tbe doctor examined tbe urine and could not name tbe disease; that be asked him bow be was, when be returned from California, and be said that be was well, and 1 thought so too. Now, it must be .conceded if tbe insured made a fair exposition of the .previous state of bis health, and the defendant’s agent assured -him that within the scope and intention of these questions, he was not seriously ill, and so wrote it down, tbe company is bound by tbe acts and statements of their agent.
It is said that tbe Court instructed tbe jury that in answering the questions tbe insured was bound to use tbe utmost good faith, but was not bound to represent what be did not know, and did not remember; and it is said this ruling is wrong.
*319The word “remember” was used with reference to such facts as would ordinarily be deemed immaterial, and was therefore merely used incidentally; for there was no question regarding the man’s memory. It was used to> illustrate the idea that a man questioned upon his illness during a period long past could not be expected to remember and speak of small matters of indisposition such as are not. usually called sickness, such as casual sore throat or headache. I apprehend this will be found to be a correct ruling in that connection.
The words that the applicant was not bound to represent what he did not know were used with, regard to the expression “serious illness.”
The law seems to me to be well summed up in May on Insurance, Section 202. “It has been held that there is no concealment if the fact omitted was believed to be immaterial by the applicant.” The question was whether the applicant had had any sickness within the last ten years, and the answer .was that he had had “pneumonia,” but said nothing of a “slight attack of chronic pharyngitis.” It was held to. be no concealment, as the party was not bound to state such facts as would ordinarily be deemed immaterial, such as that he had had a cold,, or a diarrhea, or an irritation of the throat, not fairly embraced in what is popularly understood as sickness.
I have said the word “-remember ” was merely incidentally used, because there was no question in regard to the man’s memory, it being averred on one hand that the deceased had stated that he had no serious illness, and had consulted no physician, and on the other it was maintained that he not only remembered but stated that he had gone to California for his health, and had there been under the care of a physician whom he named. I conceive that the whole of the answers written by defendant’s, agent are controlled by this testimony.
But it is said that if he answered “no” to the question whether he had a “serious disease,” and had one at the time, whether he knew it or not, this untrue answer, though made ’ *320in honesty and good faith, is a breach of the warranty and renders the policy void.
"With great respect I do not think the law can be so holden when applied to questions of this general nature, such as had the party been seriously ill, “What is the present and general state of health of parties referred to in queries 16, 17 and 18; as for instance take the 16th question: Are the parents living?”
This applicant is insuring here at Honolulu; the parents, if living at all, are residing in a distant country. He answers thus: his father is living at the age of 67, his mother at the age of 64. Now suppose that the next mail brings intelligence that one or both of his parents had deceased some weeks before, can it be said that his policy of insurance was void because he had warranted them to» be alive at that date? The 18th question speaks of the health of three brothers and four sisters as “good,” all of them being in a distant land; and if it should afterwards be discovered that one or two of them were sick of a fever at the date of the application, unknown to the applicant, would his policy be void because he had warranted their health? In the case of the Insurance Company vs. Wilkinson, 13 Wallace, one of the questions to the applicant was, had she ever had a “serious personal injury?” to which the answer was “no.” She had fallen from a tree ten years before. The Court says: “The accidents resulting in personal injuries, which at the moment ai’e- considered by the parties ‘serious,’ are so very numerous that it would be almost impossible for a person engaged in active life to recall them at the age of forty or fifty years; and if the failure to mention all such injuries must invalidate the policy, very few would be sustained where thorough inquiry is made into the history of the party whose life is the subject of insurance. There is besides the question of what is to be considered a serious ’ injury at the time. If the party gets over the injury completely without leaving any ill consequences, in a few *321days, it is clear that the serious ’ aspect of the case was not a true one.”
In May on Insurance will be found the following note appended to Section 156: “ Though we have treated the several subjects of warranty, representations and concealment in separate chapters, it will be seen that these- subjects are so nearly allied that cases illustrative of each have much in common, and if it were material it would be difficult to determine under which chapter to arrange them. For the most part a case in either chapter will illustrate the others, as the several subjects are almost invariably discussed together.” And again, “if a warranty be a statement of facts it must be literally true.”
But the question whether the disease or accident is serious or not, as has been shown above in Wilkinson’s case, is a matter of opinion until the final event has demonstrated its seriousness. In Denison vs. the Thomaston Mutual Insurance Company, one of the questions to the applicant was about the distances of other buildings from the premises insured. The answer was, “ east of the- block are small, one-story woodsheds, and would not endanger the buildings if they should burn.”
In point of fact, these wood-sheds were within fourteen feet of some two-story wooden buildings on another street, which, having taken fire communicated the fire to the plaintiff's-house. Now the condition of insurance was as usual, in fire insurance, that no- circumstance material to the risk is withheld, which appears to me to be a very similar question to-that in life insurance policies which is under consideration, the-Court says: “In the case at bar, it has now been rendered, undeniable, that the burning of the two-story buildings on another street,, endangered the plaintiff’s house-; and in the interrogatory propounded it would now seem that the existence of those buildings might with propriety have been stated. But this does not prove- that, before the occurrence of' the fire, it would have been material to name them, as being near enough to put the plaintiff’s house in jeopardy. It is not an *322unfrequent occurrence, after a disaster has happened, that we clearly discern that the cause which may have produced it would be likely to have such effect, while, if no such disaster had occurred, we might have been very far from expecting it.” In Horn vs. the Amicable Mutual Life Insurance Company, 64 Barbour, 82, the Court remarks: “In applications for marine and fire policies, the statements relate to material facts and it is negligence or fraud on the part of the applicant for a policy, if he does not truly represent the facts. There is every reason in favor of holding such statements to be warranties.” “In respect to life policies it may be wholly different. The applicant may not know enough of the human system to be aware of the existence of some affection of a vital organ. The victim of Bright’s disease, or of an affection of the heart, liver or lungs, may be, and often is, in the enjoyment of such a condition of health and strength as to lead him to the belief that his vital organs are all sound. It would be monstrous to hold in such a case that the applicant warranted, himself to be sound, as to those organs, by an answer to the effect that he was never sick or had no disease of those organs. The Company retain their own medical advisers for the purpose of making a careful and scientific examination of all applicants for life insurance; and they are far better able to detect incipient disease than the subject in most cases. I think these statements are not understood or intended by the' parties as warranties. I think the Judge at the trial properly held that the inquiry was one of fair and honest dealing on the part of the applicant: and that the statements concerning; the condition of his health were not warranties.”
I wish always to ctraw a distinction between the answer to the questions which are particularly placed and the answer to the general questions. Many decisions have been made in cases of those who have answered that they had not consumption, and the event has proved that they had. Now, although such persons may not know that they had con*323sumption, yet any one must know tbat be bad tbe symptoms of it, and was, therefore, bound to state tbem. By tbe evidence it appears tbat tbis deceased, wben be was asked if be had had any serious illness, replied that be bad bad an illness, “serious” enough to induce him to repair to California for bis health, and to take medical advice here. He did Hot tell tbem be bad tbe aneurism of which be died, for be did not know it himself, nor did bis medical advisers know it; be stated be bebeved himself well then, and bis physician believed him well. In Hutchinson vs. the National Loan Insurance Society, quoted in May on Insurance, Section 202, 7 Ct. of Sess. Cas. (Scotch) 467, “ a warranty tbat the insured bad no disease or symptom of disease was held to import only tbat, according to tbe knowledge and reasonable belief of tbe insured, there was freedom from any disease or symptoms of disease material to tbe risk.” “So in Jones vs. Provincial Life Insurance Company, quoted as above, it was said tbat if tbe assured honestly believed tbat these attacks bad no tendency to shorten bis life, bis failure to mention them would not avoid tbe policy. What other persons of intelligence do not know or believe or apprehend cannot reasonably be expected of tbe insured. And what he cannot be expected to know, be cannot be considered as culpable for not knowing: and what be cannot be expected to apprehend he cannot, be bound to communicate; and in not communicating any such fact, be cannot be considered as eonceabng it even inadvertently, much less willfully.” In tbe cases relied upon, for an opposite view, facts were concealed which were known actually or presumptively “to be material ” and none of these cases actually decide upon tbe facts anything more than that tbe assured was bound to communicate all facts known to him, and by him believed to be material, presuming that be knew and believed what men of ordinary intelligence know and believe. In tbis view tbe cases are reconcilable. Again, at Section 296, tbe same author says: *324“As to the ordinary question whether the applicant has ever had any serious illness, as the word serious is a relative term, involving a question of degree, and it being certain that there are all degrees of illness from the slightest, ’ about which no concern is felt by any one, .to the most aggravated, attended by the most alarming developments and the most serious consequences, about which there is everywhere .the highest degree of concern, and as even a disease regarded in its course as of the most trivial in its character may be followed by the most serious results, it seems to be a question of opinion, the expression of which should be based upon intelligence and good faith. What one may call serious another might not; and where there is no test furnished by the insurers by which the applicant can know what serious illness means, his failure to mention one which he does not regard as serious works no forfeiture of the policy, though in fact the illness not mentioned was a serious one.” Life Insurance Company, 6 Rob., N. Y. (Supr. Ct.), 567. In such eases the rule seems to be that if the injury call for .an answer which .involves a matter of opinion, the applicant is answerable only for the honesty of his opinion, although the answer be untrue, in fact, and substantially the same rule was laid down in Hutchinson vs. National Loan Insurance Society, where the inquiry was whether any material circumstances touching health or habits of life with which insurers ought to be made •acquainted was withheld, and it was decided that the answer was >omly a warranty to the extent of the knowledge and reasonable belief of the insured.” See May on Insurance, Section 2t)6, p. 232. I have preferred to use the .words and quotations of this author, because they express so exactly my view of the law upon this subject. In the case of Duckett vs. Williams, it is certainly ruled that the policy would be void although the representations were innocently made by the insurer; but the representations were not made by the man himself. By which I mean the subject of the insurance was not the - applicant, but the statement was made by the *325Trustees of the Provident Life Office seeking to reinsure the life of one Stephenson, they being not shown to be aware of the ill health of Stephenson, though Stephenson was in ill health at the time. The difference is very obvious between a man who honestly says that he himself has no serious illness of which he has no symptoms, and the man who states that a third party, whose symptoms he can not and does not know, is in sound health.
“ When a person answers that his health is good up to the present time, it does not import a perfect physical condition, but does import only that the applicant is free from ostensible, known, or felt symptoms of disorder, and the answer warrants that fact and that alone, and does not warrant the non-existence of latent and unknown defects.” See May on Insurance, Section 295.
Therefore, it appears to me on principle as well as authority that the instructions to the jury were correct.
Honolulu, September 25, 1880.