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§ 2055. Representations - In General. Representations, like warranties, are either affirmative or promissory, the former being the affirmation of the existence of a fact at the time; the latter, a promise to be afterwards performed. A material falsity of the first kind will avoid the contract; a material falsity of the second kind, unless fraudulent, will not. A representation is a statement incidental to the contract, relative to some fact having reference thereto, and upon the faith of which the contract is entered into. A misrepresentation in the law of insurance is a statement of something as fact which is untrue in fact, and which the insured states, knowing it to be untrue, with the intent to deceive the insurers, or which he states positively as true without knowing it to be true, and which has a tendency to mislead.2

§ 2056. Representations must be Material.—The representation must be material. A representation is said to be material to the risk when it is of a kind calculated to influence the insurer in determining whether or not he will accept the risk, and what premium he will charge.3 It is not a point material to the risk that a mill situated in the corner of one section is described in the application as being in the adjoining corner of the next section, just across a stream. But where a fire policy is conditioned to be void "in case of any misrepresentation whatever," any misrepresentation, whether material or not, will avoid it.5

ILLUSTRATIONS. An application for fire insurance contained a statement that "the foregoing is a just, full, and true exposition of all the facts and circumstances in regard to the condiMay on Insurance, secs. 182 et seq.; 8 Am. Rep. 494; North American Ins. Curell v. Ins. Co., 9 La. 163; 29 Am. Co. v. Throop, 22 Mich. 146; 7 Am. Dec. 439. Rep. 638.

2 May on Insurance, sec. 181; citing Daniels. Ins. Co., 12 Cush. 416; 59 Am. Dec. 192; Campbell v. Ins. Co., 98 Mass. 381; Hartford Ins. Co. v. Harmer 2 Ohio St. 452; 59 Am. Dec. 684; Bobbitt v. Ins. Co., 66 N. C. 70;

3 May on Insurance, sec. 184; Continental Ins. Co. v. Kasey, 25 Gratt. 268; 18 Am. Rep. 681.

Prieger v. Ins. Co., 6 Wis. 89. 5 Graham v. Fireman's Ins. Co., 87 N. Y. 69; 41 Am. Rep. 349.

tion, situation, value, and risk of the property to be insured, so far as the same are known to the applicant and are material to the risk, and the same is hereby made a condition of the insurance and a warranty on the part of the assured." And the policy made the application a part of it and a warranty. Held, that the warranty was only such as was described in the application, and embraced only such statements as were material to the risk, and known to the insured to be false: Redman v. Hartford Fire Ins. Co., 47 Wis. 89; 32 Am. Rep. 751. A policy of life insurance was stipulated to be void if the answers in the application should "be found in any respect to be untrue." Held, that a negative answer as to whether the party ever met with any accident or serious injury" would not avoid the policy, where rendered untrue only by the fact that there had been a slight injury in no way affecting the future health of the applicant: Wilkinson v. Connecticut etc. Ins. Co., 30 Iowa, 119; 6 Am. Rep. 657. A policy which was not "a valued policy" contained a stipulation that "in a valued policy an overvaluation shall render absolutely void a policy issued upon such

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valuation," and in the survey a question was asked as to the value, and erroneously answered. Held, that the overvaluation was not "material to the risk": Cox v. Etna Ins. Co., 29 Ind. 586. The charter of an insurance company provided that they should have a lien on all buildings insured. Held, that a false representation of title by the applicant was material to the risk, and avoided the policy: Pinkham v. Morang, 40 Me. 587.

§ 2057. Matters of Opinion. Where the answer to the question involves a matter of opinion, an honest, though erroneous, answer is not a misrepresentation.1 Thus

1 In Connecticut Mut. Life Ins. Co. v. Luchs, 108 U. S. 508, the supreme court of the United States say: "As to the alleged breach of the warranty of the interest of the plaintiff in the life of Dillenberg, there is this answer: The statement of the plaintiff as to the amount of his interest was necessarily conjectural. No one can affirm with absolute certainty that he has an interest to a definite sum in the life of another, where the interest depends upon the result of an existing partnership or other business transactions not yet terminated. The value of his interest in such cases will always be more or less a matter of opinion. The statement

in that regard must of necessity be taken as a mere estimate. If, therefore, the plaintiff had an interest in the life of Dillenberg, and his estimate was made in good faith, the declaration cannot be deemed untrue so as to constitute a breach of the warranty. The extent of a man's interest in the life of another, depending upon a continuing partnership or the results of business transactions not yet completed, is, in the nature of things, uncertain, and in such cases all that can be required is that he had an actual interest, and that his estimate was made in good faith, without any purpose to deceive."

where the insured, in answer to a question as to the locality of neighboring buildings, described certain sheds in conformity to the truth, but added that they "would not endanger the buildings if they should burn," this addition was but matter of opinion, and did not amount to a misrepresentation.1

§ 2058. Subsequent Change Immaterial.-A change in the matters represented subsequent to the making of the contract does not affect it.2 The erection of a new building by the assured adjoining the insured building, if no injury actually results, and there is no provision in the contract against it, does not vitiate the policy. The drawing of a lottery with the consent and participation of the assured in a building insured against loss by fire as a "shoe manufactory" does not avoid the policy on the building nor on the stock therein. A statement in an application for an insurance on a house, that the house is unoccupied, but is to be occupied by a tenant, is not a warranty either that the house will remain occupied or that it will be occupied by a tenant. A description of a house as "occupied by" the insured is not an agreement that the insured shall continue in occupation of it. An insurance of a "dwelling-house" does not imply an engagement that it shall always be occupied whilst the risk endures. An answer in an application that "the facilities for extinguishing fires" were "force-pump and abundance of water" is not a guaranty that the pump

1 Dennison v. Ins. Co., 20 Me. 125; 37 Am. Dec. 42.

2 Southern etc. Ins. Co. v. Kempton, 56 Ga. 339; Franklin Ins. Co. v. Colt, 20 Wall. 560; Blodd v. Ins. Co. v. 12 Cush. 472; Hughes v. Ins. Co., 27 Conn. 10; Stebbins v. Ins. Co., 2 Hall, 632.

3 Gates v. Madison County Ins. Co., 5 N. Y. 469; 55 Am. Dec. 360; Stetson v. Ins. Co., 4 Mass. 330; 3 Am. Dec. 217.

Boardman v. Ins. Co., 8 Cush. 583.

Hughes v. Ins. Co., 27 Conn. 10; O'Neil v. Ins. Co., 3 N. Y. 122; Herrick v. Ins. Co., 48 Me. 558; 77 Am. Dec. 244; Catlin v. Ins. Co., 1 Sum. 434; Hough v. Ins. Co., 29 Conn. 10; 76 Am. Dec. 581.

Joyce v. Maine Ins. Co., 45 Me. 168; 71 Am. Dec. 536.

'Cumberland Valley Mut. Protection Co. v. Douglas, 58 Pa. St. 419; Rafferty v. Ins. Co., 18 N. J. L., 480; 38 Am. Dec. 525.

shall always be kept in good order for use;1 nor is a statement in an application that a cask of water is kept in the third story of the building insured.2 A clause in a policy that "all the above barns are used for hay, straw, grain unthrashed, stabling, and shelter, " does not constitute a warranty that the buildings shall be used in that manner, and in no other. A policy is not avoided by the fact that a quantity of rags was in premises insured at the time of the fire, where the applicant represented that no rags were kept in or near the premises, it not appearing that the representation was untrue when made. A statement in an application for insurance on a thrashing-machine that the machine is located in a certain barn is not a stipulation on the part of the applicant, or a condition of insurance on the part of the insurer, that the location shall remain unchanged; or if changed, that while changed the insurance shall cease or be suspended.5 The words "no fire in or about said building except one under kettle (used for heating water), and made perfectly secure against accident," in a policy of insurance, do not constitute a warranty on the part of the assured that no other fires shall be used in the building during the continuance of the policy, but refer only to the condition of the property at the time insurance was effected. A representation by the assured that he was a "switchman" is not a contract that he would do no act connected with the occupation of a "brakeman," in performing the duties wherein he was killed." A clause in an application for a policy of insurance that the party insured was to take an inventory of his stock every three

1 Gilliat v. Pawtucket etc. Ins. Co., 8 R. I. 282; 91 Am. Dec. 229; Cady v. Ins. Co., 4 Cliff. 203; Townsend v. Ins. Co., 18 N. Y. 168.

2 Jones Mfg. Co. v. Ins. Co., 8 Cush. 82; 54 Am. Dec. 742.

3 Billings v. Ins. Co., 20 Conn. 139; 50 Am. Dec. 277.

Gould v. York etc. Ins. Co., 47 Me. 403; 74 Am. Dec. 495.

76.

Everett v. Ins. Co., 21 Minn.

6 Schmidt v. Ins. Co., 41 Ill. 296. 7 Provident etc. Ins. Co. v. Fennell, 49 Ill. 180.

months is not a condition by which the policy is to be defeated and become of no force.'

But "a representation is a continuous statement from the time it is made, during the progress of the negotiations, and down to the time of the completion of the contract; so that though in point of fact the representation be true when actually made, yet if by some change intervening between that time and the time of completion of the contract it then becomes untrue, it will avoid the contract if the change be material and to the prejudice of the insurers, or be such as might probably influence their opinion as to the advisability of accepting the risk. The law regards it as made at the instant the contract is entered into."

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§ 2059. Statutes as to Warranties and Representations. -A statute of Massachusetts provides that in all fire policies "the conditions of the insurance shall be stated in the body of the policy, and neither the application of the insured nor the by-laws of the company shall be considered as a warranty or part of the contract, except so far as they are incorporated in full in the policy, and so appear on its face before the signatures of the officers of the company." In Missouri and Kentucky it is provided by statute that "no misrepresentation . . . . shall be deemed material or avoid the policy, unless the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become due or payable." 4

§ 2060.

Concealment. Concealment is the willful withholding of some fact material to the risk which the

Wynne v. Liverpool etc. Ins. Co., 71 N. C. 121.

2 May on Insurance, sec. 190; citing Trail v. Baring, 4 Giff. 485; 10 L. 7., N. S., 215; Whitley v. Ins. Co., 71 N. C. 480.

3 Stats. 1864, c. 191, sec. 1.

The statute applies even when the applicant has made an express warranty: White v. Ins. Co., 4 Dill. 177; Chamberlain v. Ins. Co. 55 N. H. 249. Contra in Kentucky: Farmers' etc. Ins. Co. v. Curry, 13 Bush, 312; 26 Am. Rep. 194.

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