(after stating the facts). The correctness of the modification to the defendant’s instruction depends upon whether or not the answers to the questions made by the applicant, as set out in the statement of facts, were warranties or representations merely. In the case of Providence Life Assurance Society v. Reutlinger, 58 Ark. 528, the court said: “Statements or agreements of the insured which are inserted or referred to in a policy are not always warranties. Whether they be warranties or representations depends upon the language in which they are expressed, the apparent purpose of the insertion or reference, and sometimes upon the relation they bear to other parts of the policy or application. All reasonable doubts as to whether they be warranties or not should be resolved in favor of the assured.” (Citing authorities.)
The policy itself is the contract for insurance. In the case at bar the policy was not introduced in evidence, and, so far as the record discloses, the application was not inserted in it, nor was it referred to in any way in the policy. A warranty, being a part of the contract itself, as contradistinguished from a representation, which is a mere inducement to the policy, must necessarily appear in the contract itself in express terms or be so referred to in the policy as to clearly indicate that the parties intended it to form a part of the contract. Spence v. Central Accident Ins. Co., 236 Ill. 444, 19 L. R. A. (N. S.) 88; Mutual Benefit Life Ins. Co. v. Robertson, 59 Ill. 123, 14 Am. Rep. 8; Daniels v. Hudson River F. Ins. Co., 12 Cush. (Mass.) 418, 59 Am. Dec. 192. Moreover, the language of the application shows that the answers to the questions propounded to her were intended by the parties to be representations merely, and not warranties.
It follows that, the application not being a part of the policy, any statements contained therein are representations and not warranties. A warranty differs from a representation in creating an absolute liability, whether made in good faith or not. The reason is that a noncompliance with a warranty operates as an express breach of the contract, while a misrepresentation renders the policy void on the ground of fraud. The questions propounded in the application, as set out in the statement of facts, call for answers founded on the knowledge or belief of the applicant, and in such cases a misrepresentation or omission to answer will not avoid the policy unless wilfully or knowingly made with an attempt to deceive. 25 Cyc. 801, and cases cited. See also Reppond v. Nat. Life Ins. Co., (Tex.) 11 L. R. A. (N. S.) 981; Aetna Life Ins. Co. v. Rehlaender, 68 Neb. 284, 4 A. & E. Ann. Cas. 251.
The plaintiff introduced testimony tending to show that neither the applicant nor her mother or brothers or sisters had consumption at the time her application was made for insurance.
The right of the plaintiff to recover depended upon whether or not the answers of the applicant to the questions propounded to her were made in good faith or not. Hence the court did not err in modifying the instructions asked by the defendant.
Therefore the judgment will be affirmed.