Citizens' Nat. Life Ins. v. Swords

68 So. 920, 109 Miss. 635

Opinion

Cook, J.,

delivered the opinion of the court.

This case will be affirmed. We think the argument for appellant fails to take into account the express terms of the contract. If the statements of the insured, when she applied for insurance, are to be deemed warranties, the arguments of appellant would be applicable. We find, however, this clause in the conditions of the policy, viz:

“This instrument contains the entire contract between the parties hereto, and all statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties. ’ ’

There is'a well-recognized distinction between “representations” and “warranties.” A warranty must be literally true and its materiality cannot be the subject of inquiry. A representation needs only to be substantially true, and if it is not material to the risk, in the absence of fraud, its falsity will not invalidate the policy. Capital Fire Ins. Co. v. King, 82 Ark. 400, 102 S. W. 194; Fidelity & Deposit Co. v. Guthrie Nat’l Bk., 17 Okl. 397, 87 Pac. 300; Guthrie Nat’l Bk. v. Deposit Co. 14 Okl. 636, 79 Pac. 102.

By the condition referred to, in the absence of fraud, although the statements of the insured may not have been literally true, the contract will not be void. As we read the evidence, any imputation of bad faith is unwarranted.

It seems to us that a correct verdict was rendered by the jury. By the very terms of the policy the representations, in the absence of fraud, will not serve to defeat the claim of appellee. It is not shown that there was any fraud on the part of the insured.

Affirmed.