(dissenting). I can see no good reason for directing a new trial in this case. Neither can I agree with the assumption “that plaintiff acted with reasonable promptness after learning the facts upon which it based its rights to rescind.” While it is true that the court failed to find the degree of Indian blood possessed by the insured, this record, however, disclosed a *368general verdict in favor of the defendants, -besides specific findings upon the material facts of the case. The case was one for money had and received. In my judgment the court erred in holding that the case was one for the court on the chancery side. It seems clear that it was a case wherein the parties had the right of jury trial.
The statement d Indian” should be treated as a representation and not as a warranty. 'Under the old rule, possibly such statement might have been held to be a warranty, where the parties so stipulated; but this rule does not obtain in this state. Section 933-5, C. L.,. provides:
“All statements made by the insured Shall in the absence of fraud be deemed representations and not warranties.”
This provision is found in the standard form of life insurance policies and becomes a party of every policy. This legislation was passed expressly for the purpose of removing the rigor and hardship that was imposed upon the policy holders, by making everything pertaining to health and family 'history a warranty.. Since the adoption of the standard policy, the representations sufficient to avoid the policy must be made with a fraudulent intent and must also be material to the risk. These are questions of fact actually passed upon by the jury. The court should not, as a matter of law, permit life insurance companies to- engage in the business of insuring the lives of our Indian people, and, after receiving the premium, wait until the death of the insured and then, after proof of loss, adjust the loss and pay the policy in full and, after doing so, bring an action for a return of the money so- paid. The very purpose of the standard policy was to require investigation to be made before payment rather than afterwards.
The mother of Jesse P. Kazena in her testimony could not and did not give any testimony as to- the exact degree of Indian blood in that of herself or her son. In view of this, failure of proof, and the findings of the jury, the lower court should be directed to enter judgment for the defendants.
The evidence wholly fails to justify the findings that the statement contained in the application of the insured, that he was--“54 -breed Indian,” was untrue or that the insured was more than “54-breed Indian.” The jury found that this statement was true, *369and upon this issue the defendants were entitled to their judgment.
The highest function of the court should be to administer, justice and not to engage in hairsplitting contests for the purposes of ascertaining the degree of Indian blood that may be possessed by the insured, especially when investigation, adjustment, and payment of the loss had been made.
The evidence in this regard is clearly sufficient .to sustain' the verdict of the jurj. The lower court should be directed to enter, judgment on the trial already had, without the further burden and delays of a new trial.
Note. — Reported in 199 N. W. 43. See, Headnote (1), American Key-Numbered Digest, Action, Key-No. 25(2), 1 C. J. Sec. 175; (2) Insurance, Key-No. 265, 25 Cyc; 807; (3) Insurance, Key-No. 601, 25 Cyc. 955; (4) Insurance, Key-No. 399, 25 Cyc. 859.