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 nikking 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 there to, and upon the faith of which the contract is made. May, Ins. 190. It may be affirma tive or PrOM/88Ory.
The distinction between representation and warranty must be carefully observed; the latter is.a part of the contract, the former is but a statement incidental thereto. in an action on the policy the plaintiff must show facts sufficient to bring him within the terms of the warranty, while the burden of prov ing the untruthfulness of representations, if any, is on the defendant. Further, represen tations 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 ma teriality does not arise ; May, Ins. § 183. All reasonable 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 Ia. 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 ccncealment 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 mis representation, the assured cannot be pro tected by •ignorance of the contents of the application, since it is his duty to inform himself of its contents before signing ; Hern don 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 uninten tionally, or through mistake, makes the in surance 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, re duced to writing and made a part of the con tract, become substantial warranties ; May, Ins. § 182. See Kimball v. Ins. Co., 9 Allen (Mass.) 540, 85 Am. Dec. 786.
A substantial compliance with a repre sentation is sufficient,—the rule being less strict than in case of a warranty ; Miller v. Life Ins. Co., 31 Ia. 216, 7 Am. Rep. 122; Mnt. Benefit Life Ins. Co. v. Wise, 34 Md. 582. The validity of the policy does not de pend on the literal truth of the assertion ; ./Etna Ins. Co. v. Simmons, 49 Neb. 811, 69 N. W. 125. The substantial truth of the state ment is for the jury, but not its materiality; May, Ins. § 187.
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 express ly 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 ma terial circumstances, subject, however, to the principle, applicable to all contracts, that fraud by either party will exonerate the oth er 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 Ill. 482, 10 N. E. 242, 59 Am. Rep. 810 ; Alabama G. L. Ins. Co. v. Johnston, 80 Ala. 470, 2 South. 125, 59 Am. Rep. 816. See Cobb v. Ben. Ass'n, 153 Mass. 176, 26 N. E. 230, 10 L. R. A. 666, 25 Am. St. Rep. 619 ; CONCEAL MENT; INSURANCE; MISREPRESENTATION; WARRANTY.