have consulted in the past five years. Ans. None. 19. Have you stated in answer to question 17 all illnesses, diseases, injuries, or surgical operations which you have had since childhood? Ans. Yes. 20. Have you stated in answer to question 18 every physician and practitioner consulted during the past five years and dates of consultations? Ans. Yes. 21. (a) Are you in good health? Ans. Yes. (b) If not, what is the impairment? Ans. None." Following the questions and answers is this certificate: "I certify that each and all of the foregoing statements and answers were read by me and are fully and correctly recorded by the medical examiner. Joseph L. Quinn. "[Signature in Full of Person Examined.]" [1] The affirmative defense sets out the foregoing facts, quoting the questions and answers above, and alleging that each and all of same are wholly false, and were known at the time by the applicant to be false, in that the applicant was at that time afflicted with the disease of syphilis, and in that the applicant had shortly prior thereto consulted with Dr. A. J. McIntyre and had been treated by him for that disease. It is admitted by the reply of respondent that at the time of making his application the applicant was suffering with a venereal disease, and averred that the defendant had full knowledge thereof. The case was tried to the court without a jury, who made findings of fact in favor of respondent. We therefore try the case de novo, and must affirm the findings of the court unless the evidence preponderates against the same. It appears from the evidence that one R. W. Edgington was the duly authorized agent of the appellant, and on several occasions solicited the applicant to take out a policy of life insurance; that previous to the taking out of this policy the applicant had told the agent that he was afflicted with some ailment the nature of which was not disclosed to the agent, and had been treated therefor by a doctor in Hoquiam; that the agent replied that the applicant did not appear to him to have anything the matter with him; that he, the agent, would see the company's medical examiner in Hoquiam, Dr. Watkins; and that a few days thereafter the agent returned and said that he had seen Dr. Watkins and that it would be all right. The applicant thereupon made application for the policy on April 15, 1914, and on April 19, 1914, was examined by the appellant's medical examiner, Dr. Watkins, and the foregoing answers were signed. The testimony of the medical examiner was that Edgington, the agent, had told him nothing whatever concerning the applicant or concerning any disease that the applicant may have been suffering with; that the answers made by the appellant were truly and correctly recorded in the written report of examination made, by Dr. Watkins; and that he relied upon them and upon no other information whatever. This testimony of the medical examiner was undisputed. The court found that: "If the answers of Joseph L. Quinn reported to have been made to Dr. Watkins as aforesaid were actually made by him, they were not made with the intention of defrauding, deceiving, or misleading Dr. Watkins or the defendant company." The court further found that previous to the time that Quinn was examined by Dr. Watkins he had been treated by one Dr. McIntyre, who had prescribed for him a treatment of neosalvarsan on March 16, 1914, and another administration of the same drug on March 18, 1914, and that Dr. McIntyre was of the opinion that Quinn was suffering with syphilis, and that he treated him for that disease at the times mentioned. It appears also from the testimony of appellant's medical referee and its manager for the territory where this policy was issued that, had the appellant answered truthfully the questions propounded to him, and had the medical report shown that he had suffered with the disease of syphilis within two months prior to the application, he would not have been accepted as an insurance risk and the policy would not have been issued. [2] There is a statutory provision in the Insurance Code of 1911 (Laws 1911, p. 197) § 34, as follows: ranty made in the negotiation of a contract or "No oral or written misrepresentation or warpolicy of insurance, by the assured or in his behalf, shall be deemed material or defeat or avoid the policy or prevent it attaching, unless such misrepresentation or warranty is made with the intent to deceive." 3 Rem. & Bal. Code, § 6059-34. In view of this statute the only fact to be, determined is whether or not the representations made by the applicant were made, as the court found, without intent to deceive. When one has made a false representation knowing it to be false, the law infers that he did so with the intention to deceive. Hammatt v. Emerson, 27 Me. 308, 46 Am. Dec. 598; Northwestern Life Ins. Co. v. Montgomery, 116 Ga. 799, 43 S. E. 79; Boddy v. Henry, 126 Iowa, 31, 101 N. W. 447; Thorner v. John Hancock Mut. Life Ins. Co., 164 App. Div. 34, 149 N. Y. Supp. 345. Respondent contends, however, that the knowledge of the agent must be imputed to the company, and relies especially upon the case of Turner v. American Casualty Co., 69 Wash. 154, 124 Pac. 486. In that case we said: "Passing to a consideration of the third contention, it suffices to say that this court has steadfastly held that a policy will not be held void, nor will a warranty clause in a policy be held to have been breached, for a cause known to the agent before the application for the policy was signed, where the insured fully and truthfully related the facts to the solicitor, and false answers were written in the application by him [the agent]. The underlying principle of these cases is that the knowledge of the agent is the knowledge of the principal, without regard * to whether the agent communicates the facts to refused him. From the facts that he died it, that, where the insured makes full and truth- only a little more than a month after his ful statements to the agent who procures the policy of insurance, the insurer will be held to application, and that his death was due, in have waived the written warranties in so far as the opinion of physicians, either to the disthey are not in harmony with the facts disclosed, ease or to the neosalvarsan treatment, it and that this court will determine the authority cannot be doubted that he himself must have of the agent from the actual relations of the par-known of the seriousness of the disease, and ties, rather than from the fictitious relations sought to be created by the recitals in the that he was probably not cured. written instruments." As we view it, however, that case is not applicable, for the reason that here the insured did not "fully and truthfully" relate the facts to the solicitor, and false answers were not written in the application by the agent. The only evidence there is as to what representations were made by the applicant to the agent is the testimony of an associate of the applicant, as follows: "Witness Brinn: Mr. Edgington came to camp several days trying to get us to take out policies. I did not care to take it out, and so Joe was not particular. He asked Joe' to take it out, and Joe told him he did not care to take out a policy because, he put it in this way, he says, I have got all the policies I can tend to,' speaking in a joshing way. He says, 'Why, there is nothing wrong with you, is there, Joe?' I spoke up, I says, 'Joe got touched up a little bit.' Then Mr. Edgington asked what was wrong. I said Joe was doctoring in Hoquiam, taking treatments for a disease. I did not mention what it was, because I did not know. And Mr. Edgington says to Joe, 'You do not look like a sick man to me; better take one out anyway. And it run on for several days, about a week or so, and finally Mr. Edgington says, 'I shall go down for a talk with Mr. Watkins about this;' and he went away for two or three days and came back and says, 'Joe, I think that will be all right. I have been talking with Watkins about it,' Mr. Edgington says to Joe. And Joe then didn't want to take out a policy. And finally Edgington talked to me on writing a policy. I says, Joe, we might as well take this; it will be $1,000 at the end of 20 years that you wouldn't have otherwise. So he (Joe) says, 'Well, I shall take the policy,' and Mr. Edgington written it out for him. I guess that is all." This certainly fails to show that the applicant or any one speaking for him had in any way fully and truthfully brought to the soliciting agent of the company knowledge of the concealed facts brought out afterward, that he was at the time afflicted with syphilis and was taking treatment for it, which he concealed from the soliciting agent as well as from the examining physi cian. These facts, with the legal presumption of implied deceit from the falsity of material and inducing representations, clearly overbalanced the finding of his honor that the assured "had no intent to deceive." These untruthful representations were material, be ing made as stated in the application "as an inducement to issue the proposed policy." Nor can it be justly said, as counsel for respondent urge, that Quinn may have considered himself cured of syphilis; for it is undisputed that, had he disclosed the fact of the existence of that disease within two months previous to his application and treat 66 These facts also distinguish this case from the former case from this court, Turner v. American Casualty Co., cited by respondent, and from Levie v. Metropolitan Life Ins. Co., 163 Mass. 117, 39 N. E. 792, and other simiIn the Levie Case the court say: lar cases. Nevertheless our statute provision unless it is established, not only that the stateprecludes the defendant from prevailing ments or answers were incorrect, but also either that the misrepresentations were made with actual intent to deceive, or that the matter misrepresented increased the risk of loss. Whether the statements and answers of the application were incorrect, and whether, if they made with actual intent to deceive, were incorrect, the misrepresentations were * * * there was a conflict of evidence, to the jury with were all questions of fact, to be submitted, if proper instructions." As will readily be seen, in the present case it cannot be doubted that the misrepresentations were knowingly made, and were therefore impliedly deceitful. They were material, and must have been made with intent to deceive., There was no conflict in the evidence upon those questions, and therefore the case is not parallel to the case cited. In Johnson v. Northern Life Ins. Co., 123 Minn. 453, 144 N. W. 218, also cited by respondent, the court say: "As we construe the statute, a material misrepresentation, made with intent to deceive and defraud, avoids the policy. A material misrepresentation, not made with intent to deceive or defraud, does not avoid the policy. Whether a misrepresentation is material, and whether a misrepresentation is made with intent to deceive and defraud, are questions usually for the jury, with the burden of proof upon the insurer." * * In Ley v. Metropolitan Life Ins. Co., 120 Iowa, 203, 94 N. W. 568, the Supreme Court of Iowa, having before it almost an identical statute and parallel misrepresentations, say: "To establish its defense [fraud in procuring an insurance policy], it was incumbent on the defendant to prove, not simply that the answers of the applicant were untrue, but that he knew them to be untrue, and thereby obtained the insurance. It is argued that, if the answers are found to be untrue, there is a presumption that the applicant knew it and intended to deceive. * There This, we think, is not the law.** from the mere fact that a statement made is is no presumption of an intention to deceive not true; such presumption arising only when it appears that the statement is made with knowledge of its falsity." Again, in this case it is apparent that the case cited is not parallel for the reason that, as we have heretofore said, the facts preponderate to the effect that the statements were untrue, that the applicant knew them to be untrue, and that the presumption is that he intended to deceive when making 38.1 [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 99-111; Dec. Dig. 2. STREET RAILROADS REGULATION OF TRACKS. 38-POLICE POWER [3] Respondent insists also that the judg-plank or pave the portion of the street occupied ment should be affirmed for the reason that by its tracks and on sides. appellant is estopped to question the validity of the policy from the fact that it was delivered by the agent of the appellant to the insured at a time when the condition of the health of the insured was as shown by the appellant at the trial, citing Northwest Life Ass'n v. Findley, 29 Tex. Civ. App. 494, 68 S. W. 695. In that case the court say: "It was about six weeks from the time the policy was delivered until the death of the insured. Appellant held the premium during that time, and knew, through its agent, Barnes, the condition of the health of the insured, but did not repudiate his act in delivering the policy, or take any steps to revoke or cancel the policy. The knowledge of Barnes concerning the health of the insured should be imputed to his principal, and its failure to act amounted to a ratification of the delivery." A municipality under the police power can require a street railway to keep its tracks in a reasonably safe condition for the public safety and welfare. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 99-111; Dec. Dig. 38.] REQUIRING 3. STREET RAILROADS 38 PAVING-POWER OF CITY. The city of Olympia, a city of the third class, in the absence of statute giving to such cities power to require street railway companies that have constructed their tracks and are operating their cars thereon to pave or improve any portion of the streets, has no such delegated power. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 99-111; Dec. Dig. 38.] 4. STREET RAILROADS 38-FRANCHISESPERFORMANCE BY STREET RAILWAY. Ordinance No. 397, granted a street railWhere Olympia, a city of the third class, by way the right to operate upon certain streets, section 6 of the franchise providing that the road should pave the street between its rails, etc., and section 16 that the city reserved the right to amend the charter, having due regard for the road's vested rights, such city could not, after the road had paved between its tracks, etc., as required by the city, require it to repave with other material the same as used by the city. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 99-111; Dec. Dig. 38.] 5. STREET RAILROADS 38-PAVING ORDINANCE "CONSTRUCT"-"MAINTAIN." Upon this point also we cannot agree with counsel for respondent, for the reason that there is no showing in this case that ap-its pellant had any knowledge of the condition of the assured's health at the time the polley was delivered to him, unless what is contended to be the knowledge of appellant's soliciting agent is imputed to it. But, as we have said before, the soliciting agent had no knowledge so far as the evidence goes of the exact nature or condition of the assured's health. Appellant manifestly could not repudiate the act of the agent when he had no knowledge from any statements of the insured of the existence of the disease previous to the time that the policy was delivered. We are unable to escape the conclusion that the insured misrepresented the facts to the agent of the appellant and especially to the examining physician; that there was no collusion between the examining physician, agent, and insured; that the misrepresentations were material; that they were in fact warranties; and that they materially contributed to the loss. The judgment is therefore reversed, and the cause dismissed. MORRIS, C. J., and PARKER, BAUSMAN, and MAIN, JJ., (91 Wash. 519) concur. STATE ex rel. CITY OF OLYMPIA et al. v. (Supreme Court of Washington. June 16, FRANCHISE 1. STREET RAILROADS 38 Ordinance No. 816 of the city of Olympia, providing that a street railway, grantee of a franchise, should maintain paving between its rails, etc., and that the franchise was granted subject to all the requirements prescribed by Ordinance No. 397, a prior ordinance providing that nothing contained therein should be construed to prevent the municipality from paving all of the streets occupied by the railroad, did not require the road to construct and maintain paving, but merely to maintain, after construction, paving laid by the city; since the word "maintain" does not mean to provide or construct, but to keep up, to keep from change, to preserve, to hold or keep in any particular state or condition, though it is in some instances synonymous with "construct" when it must be inclusive thereof to make it reasonable or effective. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 99-111; Dec. Dig. 38. For other definitions. see Words and Phrases, First and Second Series, Construct; Maintain.] Department 2. Appeal from Superior Court, Thurston County; John R. Mitchell, Judge. Mandamus by the state of Washington on relation of the City of Olympia and George A. Mottman, against the Olympia Light & Power Company. From a judgment for plaintiffs, defendant appeals. Judgment reversed, and cause dismissed. Troy & Sturdevant, of Olympia, and A. J. Falknor, of Seattle, for appellant. Geo. R. Bigelow, of Olympia, for respondents. HOLCOMB, J. In June, 1890, Olympia, a city of the third class, conferred upon appel For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes lant, a public service corporation, by Ordi- "Nothing in this ordinance, nor any privileges granted thereby, shall be construed to prevent the municipal authorities from grading, paving, sewering, macadamizing, improving, altering or repairing or changing the grade of any of the streets, avenues, or thoroughfares over which the said company may extend its lines, but all such work shall be done so as to offer as little obstruction as possible to the operation of said railway, and the owner or owners of such railway shall, at their own expense, raise, lower, or change its tracks so as to avoid as much as possible the liability to obstruction during the progress of street repairs, improvements or al terations." Section 6 of the ordinance is as follows: "The owners or lessees of such railways shall plank that portion of the street occupied by them between the rails and to a width of eighteen inches outside the rails, and shall keep such planking in good repair during the continuance of this franchise, and such planking shall be laid at the time of the construction of such railways." Section 16 is as follows: and such election shall be final, and any change in the location or grade of tracks permanently paved under the provisions of this ordinance shall be made at the expense of the city of Olympia." In June, 1915, the city council attempted to pass Ordinance No. 1384, which was regalarly passed and published as required by law, but which was never accepted by appellant, and appellant has in no wise acquiesced in or consented to its passage. This ordinance purports to amend section 6 of Ordinance No. 397 so as to read as follows: or "The owners or lessees of such railways shall improve and maintain the portion of the street occupied by their said car tracks between the rails and to a width of eighteen inches on the outside of the rails on both sides of said tracks with the same material used by the city of Olympia on the balance of the street along which and upon which said car tracks are laid, and whenever any street within the city of Olympia shall be improved, by paving, the owner lessee hereunder shall forthwith pave the portion of the street occupied by its tracks between the rails and to a width of eighteen inches on the outside of the rails on both sides of said tracks with the same material used by the city on the balance of said street; the provisions of this ordinance shall apply to any street or portion thereof upon which the city of Olympia has heretofore caused paving to be laid, as well as upon streets or portions thereof where no paving has yet been laid; whenever it becomes necessary under the terms of this ordinance for the owner, grantee or lessee hereunder to pave its said tracks, the city council of the city of Olympia shall notify it so to do by resolution, directing said owner, or grantee or lessee hereunder to forthwith and within twenty (20) days from the passage of said resolution to commence to pave its said tracks in the same manner as the balance of said street along which said "The city of Olympia hereby reserves to it-tracks extend shall be paved." self the right to adopt and enforce all neces sary ordinances to control the performance of the conditions of this charter, and also of amending, or in any manner altering this charter, having due regard for the vested rights of said Olympia Light & Power Company and its successors and assigns. It also reserves to itself the power to revoke this charter if any of the conditions hereof are not complied with." On October 5, 1908, the city passed Ordinance No. 990, which was accepted by appellant, amending section 6 of Ordinance No. 397, to read as follows: In June, 1915, the city council passed an ordinance for the improvement by paving of Fourth street from Eastside street to the east city limits, which would include all that portion of Fourth street between Eastside street and Central street occupied by appellant's tracks. This ordinance provides for the paving with asphaltic concrete of all that portion of Fourth street except that portion occupied by the tracks of the appellant and to a width of 18 inches on the outside of the "The owners or lessees of such railways shall rails on both sides of the street car tracks of plank that portion of the street occupied by appellant. On July 7, 1915, the city council them between the rails and to a width of eight-passed resolution M-46, notifying appellant to een inches outside the rails, and shall keep such begin the paving of its tracks with asphaltic planking in good repair during the continuance of this franchise, and such planking shall be concrete on a concrete foundation and for a laid at the time of the construction of such distance of 18 inches on each side thereof. railways: Provided, however, that the owners By virtue of the amendment to the franchise or lessees of such railways may at their option ordinance of June, 1915, and the resolution use such material between the rails for a distance of eighteen inches outside the rails as above referred to, the city claims a right is used by the city in the construction of the to require appellant to pave with the same street occupied by such railways, but if the ma- material used by the city, and commenced terial used by the city and adopted by the company under this provision is of a permanent this action in the superior court to compel character, such as wood-block, stone or asphalt, by mandamus such performance by appellant. then and in that event the space outside the rails to be paved and maintained by the owners or lessees of such railways shall be twelve (12) inches instead of eighteen (18) inches as herein otherwise provided for. Provided, however, the said Olympia Light & Power Company shall within thirty days after being called upon so to do by the city council, elect whether it will pave with such permanent pavement or not, Fourth street, prior to this time, had never been paved, but had been maintained as a dirt and gravel street. It is a public street running east and west and is one of the main thoroughfares of the city of Olympia. Eastside street intersects Fourth at right angles. Puget street intersects Fourth one block east of Eastside street. Central street intersects | ditions, and under the franchise ordinance Fourth street four blocks east of Puget. The difference in the situation as regards the controversy between these parties as to paving Fourth street from Eastside street to Puget street and paving from Puget street to Central street arises from the fact that the appellant constructed its railway and exercised its franchise first only to Puget street under Ordinance No. 397. On May 2, 1904, the city passed Ordinance No. 816, granting to appellant the right to extend its street railway from Puget street easterly on Fourth street to the city limits. Section 2 of that ordinance, extending the privilege to construct and operate the railway from Puget street to Central street, is as follows: "The construction of the railway, the franchise for which is hereby granted, shall be commenced within 60 days from the date of the approval of this ordinance, shall be prosecuted without unnecessary delay and completed within 120 days from date of the approval hereof: Provided, however, that if said railway shall be completed east of Fourth street to Central street within the time herein specified, the time for the completion of the remainder of the road shall be extended one year from date hereof." Section 3 reads: "The said Olympia Light & Power Company, its successors and assigns, shall maintain such paving between the rails of said railway and to a distance of eighteen inches on each side of same, as shall be used by the city in the paving of said Fourth street along the line of this road. But should said street be not planked or otherwise paved, then said company may construct such road of gravel and maintain same in a proper and passable condition, and shall plank same at each street intersection if required by the council." As to this portion of the paving sought to be required by the charter, it is contended that the relator has a right to require appellant to construct pavement of the same material as that used by the city whenever used by the city, as well as to maintain such pave ment under the provisions of section 3 requiring appellant to maintain such paving between the rails of the railway and to a distance of 18 inches each side of same. Appellant, on the other hand, claims that under this ordinance it is not required to construct the original pavement, but is only required to maintain such pavement after it is constructed by the city. . Respondent asserts: (1) That the city has independent authority to compel appellant to pave; (2) that the amendatory Ordinance No. 1384 does not impair any existing contract; and (3) that the city can require paying to be done under its police power. [1] The statute of 1890 relating to the powers of municipal corporations (pages 183, 184) provided that the city council should have power to grant such a franchise for the use of the streets of the municipality and to include therein such restrictions as the city council may deem proper. Under such statutory power undoubtedly the city could enter into a binding contract with the grantee of a franchise to bind both parties to the con in question it would seem that the city council sought to make such restrictions as were then thought to be proper and necessary. If it had such power, undoubtedly the agreement was binding on both parties. Walla Walla v. Walla Walla Water Co., 172 U. S. 1, 19 Sup. Ct. 77, 43 L. Ed. 341; Southern Pacific Co. v. Portland, 227 U. S. 559, 33 Sup. Ct. 308, 57 L. Ed. 642. The ordinance granting the franchise shows that it had in contemplation the amount and character of paving to be constructed in the future and to be maintained by the franchise holder. By section 2 of the franchise ordinance it was provided that the city should have the right to grade, pave, sewer, macadamize, improve, alter, repair, or change the grade of any of the streets occupied by appellant, but such work to be done so as to offer as little obstruction as possible to the operation of the railway, and that the owners of the railway should at their own expense raise, lower, or change tracks so as to conform to such improvement and so as to avoid as much as possible the liability of obstruction during the progress of street repairs or alterations. Section 6 of the ordinance provided that the owners or lessees of the railway should plank that portion of the street occupied by the railway between the rails and to a depth of 18 inches outside of the rails, and keep such planking in good repair during the continuance of the franchise. Later, and with the consent of the appellant, section 6 was amended, giving appellant the option of planking between the rails and for 18 inches outside, as it was required to do originally, or of paving between the rails a foot on each side of the rails with such pavement as was used by the city when it paved the remainder of the street. It would seem that these provisions were intended to cover the entire subject of paving, and that the city did not contemplate any additional burden should be borne by the railway company. "A subsequent ordinance requiring additional paving impairs the obligation of the contract and is not such an exercise of the police power as will be upheld. So a city ordinance which contains by agreement as to its stipulations a contract by the city with a street railway company to pave certain portions of the street cannot be thereafter so altered by the Legislathe company in the matter of paving, even ture as to impose additional obligations upon though the Code of the state reserves to it the power to control the company's rights, privileges, and immunities and to withdraw the franchise. Joyce on Franchises, § 337. This text is supported by a large number of authorities, particularly from Alabama, Connecticut, Illinois, Iowa, Louisiana, Massachusetts, Michigan, Nebraska, New York, New Jersey, Ohio, Pennsylvania, Texas, Wisconsin, and the Supreme Court of the United States. Cases to the contrary are cited by respondent. In a Wisconsin case (City of Madison v. Railway Co., 156 Wis. 352, 146 N. W. 492), a street railway company organized |