ON MOTION FOR REHEARING The motion reargues the right of appellants to a jury trial on the question of whether alleged misrepresentations contributed to the death of insured, but presents nothing new on that question.
[4] The motion also says that the opinion may be construed as holding that there is no distinction between a "misrepresentation" and a "condition precedent." The opinion does not hold that there may be no such distinction in any case. The opinion deals with the facts of this particular case. Here the alleged condition precedent is that the policy should not go into effect if the applicant had consulted a physician since his medical examination. That statement is in a paper signed by the insured at the time the policies were delivered and states that it is an amendment to the application. Each policy states that the application is a part of the contract and all statements, in the absence of fraud, shall be deemed representations and not warranties. *Page 1055
The opinion holds, and respondent's original brief at page nine concedes, that, either to cancel the policies for misrepresentation [580] or to prevent them from becoming effective by the condition alleged, the matter covered by the representation or the condition must have actually contributed to the death of the insured. The opinion further holds that in this case the fact of contribution in either contingency is for the jury.
The motion is overruled.