Page:North Dakota Reports (vol. 48).pdf/326

 contract or policy of insurance by the insured or in his behalf shall be deemed material or defeat or avoid the policy or prevent its attaching, unless such misrepresentation is made with actual intent to deceive, or unless the matter misrepresented increased the risk of loss.”

The application and policy also declare the answers of the insured to questions contained in the application to be representations only. It is clear, under the terms of the policy, and the section above cited, that none of the insured’s answers to the questions were warranties, but merely representations.

The question of whether there was any deception or fraud on the part of the insured in procuring the issuance of the policy was a question of fact for the jury. An examination of the special verdict will disclose that they found specifically that none of her answers were false, that she did not know them to be false, and that they were not made with any corrupt or fraudulent intent of inducing defendant to issue the policy. It is true she did not state she had consulted Dr. Oliver, but there are many reasons why she may have not done so. It is possible that she overlooked that matter at the time she gave the answers; and, further, being one of robust physique, weighing 160 to 170 pounds, and apparently in good health, as shown from the testimony of many witnesses, and having experienced only at times pains in the stomach, and the accumulation of gas, etc., as above mentioned, and being able to perform her ordinary household duties, which, of common knowledge, we know are not light in a farm home, she may have regarded the incident of seeing Dr. Oliver as trivial, not worthy to be nentioned. She may have regarded any ailment she had as of no consequence, temporary in character, and merely an indisposition which might occur in one of perfect health. In view of all the evidence and circumstances, the jury were warranted in finding that she made no false answers and committed no fraud.

As we view the matter, the evidence as a whole, on part of the defendant, fails to establish any intention on her part to defraud it, and wholly fails to establish fraud. She answered truthfully when she stated that she did not have gallstones. It also may be observed that statements by her as to whether she was in good health should be considered to a large extent the mere expression of an opinion. See Donahue v. Mutual Life Ins. Co., 37 N. D. 203, 164 N. W. 50, L. R. A. 1918A, 300.