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portant limitation. As has already been said, the insured must answer accurately all questions put. But if, after answering, the insured volunteers further information, this is not treated as an answer to the questions but as being something thrown in by the insured, and the policy is not avoided, even if the statement is false, unless it actually misleads the company. Thus, in an application for life insurance, the following question was asked: "Has father or mother died or been afflicted with con

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If so state full particulars of each

case." The answer was "No. Father died from exposure in water, age 58." It was held that the "No" was alone responsive to the question, and that the rest was mere surplusage and would not avoid the policy, unless it could be shown to be material as well as false (13). So, where the clear purpose of the question is not to get information as to the risk, but as to some collateral point, the false answer will not avoid the policy. Thus, where the question was "State definitely to whom you wish the benefit made payable and relationship to you," and the insured answered, "To my wife, Emily Louise Vivar," it was held that the only purpose of this question was to ascertain to whom the policy should be made payable, and the fact that the beneficiary was not his wife was held not to be material (14).

§ 29. Incomplete answers. A similar principle applies where the applicant gives an answer which is obviously not complete. This puts the company on inquiry, and, if

(13) Buell v. Insurance Co., 2 Flippin (U. S.) 9.

(14) Vivar v. Supreme Lodge, 52 N. J. L. 455.

it takes the answer as it is, it cannot complain because of the lack of sufficiency or accuracy. Thus, where in an application for a policy of fire insurance the question was asked, "Is the property encumbered and if so for what sum?" and the answer was, "No; are mortgagees in possession and other encumbrances existing;" the company, in a later action on the policy, was not entitled to rely on the fact that there were other encumbrances, the amount of which had not been stated, for it was obvious from the face of the answer that there were other encumbrances, and, if the company did not see fit to make further inquiry, it had no one to blame but itself (15). On the other hand, where the answer does not show on its face its insufficiency, of course the company is really misled and may set up as a defense the failure to disclose fully. Thus, compare with the preceding case, the following: In an application for fire insurance the question was asked: "Is the property mortgaged or otherwise encumbered, and to what amount?" The answer was, "To A for $800." In fact there was another mortgage to B for $700. The failure to disclose this was rightly held to void the policy, for in this case there was nothing in the answer to show that all the facts had not been stated (16).

§ 30. Statements of opinion. A further distinction must be noticed, between a question of what may be called an external fact and a mere matter of opinion. In the latter kind of question, if the insured states his belief in good faith, that is all that can be required, even though his

(15) Nicholl v. Insurance Co., 1 Allen (Mass.) 63.
(16) Towne v. Ins. Co., 7 Allen (Mass.) 51.

belief may be unreasonable. The common case is that of asking the value of the property and it is well settled that, even though the answer of the insured may be unreasonably large, if it is his bona fide estimate of the value of the property, there is no ground for claiming a misrepresentation (17). Of course if the insured intentionally overvalues the property, so that he is not really stating his own opinion, that will avoid the policy, except where the company knows that it is overvalued and still accepts the risk; or, perhaps, in the case where the property is in reality worth the amount given by the insured (18).

§ 31. Materiality of representations. Ordinarily the question, whether the fact concealed or misrepresented is material, is to be settled by the jury, and the company must show that it was in fact such. Thus, if it appears that the company would not have acted differently, even had it known of the fact concealed, it clearly cannot claim it to be material (19). But the parties may, by their contract, specifically agree that the facts are material, and that of course settles it (20). The fact that the company puts certain questions and the insured answers them is strong evidence that they are material, but it is not necessarily conclusive (21).

§ 32. Promissory representations. A representation is necessarily of facts present or past. There can be no such thing as a misrepresentation or concealment of a future

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fact. Hence, where the insured in his application makes a statement as to something in the future, unless this can Le construed as a binding promise or as a warranty, it will be of no effect, even if the insured afterwards departs from his statement as to what he is going to do (22).

SECTION 2. WARRANTIES IN GENERAL.

§ 33. Distinction between representation and warranty. The difference between a representation and a warranty is fundamental and far reaching, and must be constantly borne in mind. A representation is a statement leading up to the making of the policy, but not in itself a part of it. A warranty is an integral part of the policy, on the performance of which the validity of the policy depends. A representation need be only substantially correct, and it avoids the policy if false, only if it is so on a material point, that is, one that influences the company in underwriting the policy. A warranty must be exactly performed, and the question of its materiality makes no difference, since the parties have by their contract made it a part of the policy and a condition of its validity.

§ 34. Interpretation of ambiguous clauses. As a general principle on the question whether the given statement is a representation or a warranty, the rule is that if there is a fair doubt on the point, the court will treat it as a representation. This is only just. In the first place, there is a general principle of law against construing an instrument in such a way that it will impose a forfeiture of rights regardless of any real hurt, unless it is clear that

(22) Insurance Co. v. Hoffman, 128 Ind. 250.

such was the intent of the parties. In the next place, the company draws up the policy, and it ought to make it clear that any given clause on which it relies as a technical warranty is in fact such. Finally, holding a statement to be a representation does not mean that the insured can recover at pleasure. If it can be shown that, treating the statement as a representation, it was not substantially true and that the company was misled thereby to its prejudice, the latter can still prevent a recovery. The justice of this rule is so strong that in many states statutes have been passed, which, in varying degrees, provide in substance that in all cases warranties shall be treated as representations and shall avoid the policy only if they are material and substantially false (23).

In marine insurance, probably every statement which appeared on the face of the policy relating to the risk was, under the older law, and to a considerable degree still is, construed as a warranty. In both fire and life insurance there is a very marked tendency to relax this rule.

§ 35. Express language of policy. If the policy, life or fire, expressly says that the insured "warrants" certain things, or if the policy provides that it is a “condition” of it that certain things shall be as stated, or if it provides that the policy "shall be void" (24) if certain things are done or not done, there of course can be no question. For a consideration of the more frequent clauses of this kind, see §§ 61-80, below. If the insured does not comply

(23) Such states are California, Georgia, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, New Hampshire, North Dakota, Ohio, Pennsylvania, South Dakota, Virginia. (24) App. E, 1, 29.

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