Representation

In Insurance. The stating of facts by either of the parties to a policy of insurance, to the other, whether in writing or orally, expressly or by plain implication, preliminary and in reference.to making the insurance, obviously tending to influence the other as to entering into the contract.

Augusta Ins. & B. Co. v. Abbott, 12 Md. 348; Lee v. Fire Ins. Co., 11 Cush. (Mass.) 324; Sawyer v. Mut. Ins. Co., 6 Gray (Mass.) 221.

A statement incidental to the contract, relative to some fact having reference thereto, and upon the faith of which the contract is made.

May, Ins. 190.

It may be affirmative or promissory., The distinction between representation and warranty must be carefully observed; the latter is a part of the contract, the former facts sufficient to bring him within the terms of the warranty, while the burden of proving the untruthfulness of representations, if any, is on the defendant Further, representations need not be literally complied with;./Etna Ins. Co. v. Simmons, 49 Neb. 811, 69 N. W. 125; but only in material points; while in cases of warranty, the question of materiality does not arise; May, Ins. § 183. All leasonable doubts as to whether statements inserted in or referred to in an insurance policy are warranties or representations should be resolved in favor of the assured; Providence Life Assur. Soc. v. Reutlinger, 58 Ark. 528, 25 S. W. 835. Representations in writing are, ipso facto, material; 4 H. L. C. 484; Campbell v. Life Ins. Co., 98 Mass. 381; Miller v. Life Ins. Co., 31 la.

216, 7 Am. Rep. 122.

Representations are material though the fact represented may not relate directly to the risk; Valton v. Life Assur. Co., 20 N. Y. 32. Doctrines respecting representation and concealment usually have reference to those by the assured, upon whose knowledge and statement of facts the insurance is usually made; but the doctrine on the subject is equally applied to the underwriter, so far as facts are known to him; 3 Burr. 1905. In the absence of fraud, deceit, or misrepresentation, the assured cannot be protected by ignorance of the contents of the application, since it is his duty to inform himself of its contents before signing; Herndon v. Triple Alliance, 45 Mo. App. 426; and it is the duty of the assured to communicate all material facts, and he cannot urge as an excuse for his omission to do so that they were actually known to the underwriters, unless the knowledge of the latter was as full and particular as his own information; Sun Mut Ins. Co. v. Ins. Co., 107 U. S. 485, 1 Sup. Ct. 582, 27 L. Ed. 337. A misrepresentation though made unintentionally, or through mistake, makes the insurance void, notwithstanding its being free from fraud.

See Mut. Benefit Life Ins. Co. v. Daviess’ Ex’r, 87 Ky. 541, 9 S. W. 812.

The material falsity of an oral promissory representation, without fraud, is no defence in an action on a policy. If made with the intent to deceive, the policy may be thereby avoided. Promissory representations, reduced to writing and made a part of the contract, become substantial warranties; May, Ins. § 182.

See Kimball v. Ins. Co., 9 Allen (Mass.) 540, 85 Am. Dec. 786.

A substantial compliance with a representation is sufficient, — the rule being less strict than in case of a warranty; Miller v. Life Ins. Co., 31 la.

216, 7 Am. Rep. 122; Mut Benefit Life Ins. Co. v. Wise, 34 Md. 582.

The validity of the policy does not depend on the literal truth of the. assertion; ACtna Ins. Co. v. Simmons, 49 Neb. 811, 69 N. W. 125. The substantial truth of the state- Insurance against fire and on life rests upon the same general conditions of good faith as marine insurance; but in the first two classes the contract is usually based mainly upon statements by the applicant in written replies to numerous inquiries expressly referred to in the policy, which answers are thus made express warranties and must, accordingly, be strictly true whether their being so is or is not material to the risk. The inquiries are intended to cover all material circumstances, subject, however, to the principle, applicable to all contracts, that fraud by either party will exonerate the other from his obligations, if he so elects; Smith v. Ins. Co., 24 Pa. 320; Glendale Woolen Co. v. Ins. Co., 21 Conn. 19, 54 Am. Dec. 309; Clark v. Ins. Co., 8 How. (U. S.) 235; 2 M. & W. 505; Continental L. Ins. Co. v. Rogers, 119 111.

482, 10 N. E. 242, 59 Am. Rep. 810; Alabama G. L. Ins. Co. v. Johnston, 80 Ala. 470, 2 South. 123, 59 Am. Rep. 816. See Cobb v. Ben. Ass’n, 153 Mass. 176, 26 N. E. 230, 10