(dissenting).
Fraudulent representations inducing the execution of a contract obviously affect the validity of the contract, but they also constitute a tort. The injured party has the choice of an action of deceit, independent of the contract, rescission of the contract, or defending against its enforcement. This action of deceit is entirely distinct from any rights connected with the contract and may be brought against any party who is guilty of misrepresentation, even though he is not a party to the contract and has received no personal benefit from such representations. See Page on Contracts, §§ 339, 340.
The authorities are voluminous to the effect that such an action is not based at all upon the contract, but solely upon the tort of the party against whom complaint is made. Independent of the execution of the contract, he has committed a civil wrong for which the law affords compensation to the extent of the damages suffered as a re-*354suit thereof. The contract he executes may be incontestable; it may be fully performed, but these facts in no wise affect or detract from the liability he has created by his tort.
I find no implication in either the Indiana statute or the insurance policy to create an estoppel against the assertion of the remedy for the tort. Rather, in order to create such an estoppel, either the contract of the parties or the statute of the state must be broadened to include provisions not only for incontestability of the contract but also for nonliability for the tort committed.
It seems to me, therefore, that to permit the recovery sought by appellant in no way goes beyond any intent of the statute or the contract of the parties. Neither cuts off any independent liability for deceit. The insurance company must still perform its contract, but the one committing the tort must likewise pay such damages as result from his wrongful act. It seems to me that the judgment should be reversed.