Page:North Dakota Reports (vol. 48).pdf/327

 Subdivision 15 of the policy is entitled “Policy Contains Entire Contract.” The part that is material here is as follows:

“It is agreed that this policy. shall constitute the entire contract between both parties, and that all statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties, and that no such statements shall void the policy unless it is contained in the written application therefor, copy of which is attached when issued.”

There is no stipulation in the policy that a misrepresentation, not constituting fraud, but which increases the risk, shall void the policy.

Part of § 6501 reads: “Or unless the matter misrepresented increased the risk of loss.” This provision was made for the protection of insurance companies and for their benefit, but unquestionably it may be waived by them, and we think the defendant has done so in this case by specifically stipulating that the policy constitutes the entire contract between both parties. But, however this may be, the jury has made no finding that there was any increase of risk, and, further, has specifically found that the insured made no false answers.

There is another reason why the defendant is wholly prevented from avoiding its liability. Subdivision 20 of policy provides:

“This policy shall be incontestable after one year from its date, except for nonpayment of premium.”

There was no default in payment of premiums, so no question in that regard arises. The policy is dated the 28th day of July, 1919. This action was commenced by the issuance of a summons on July 31, 1920, and, together with the complaint, was served on the defendant August 3, 1920, by an admission of service by S. A. Olsness, Insurance Commissioner of this state.

It clearly appears, and in fact it is indisputable, that more than one year had elapsed since the issuance of the policy before any act was done or action taken by the defendant to contest it. Thus the defendant thereafter is, by the terms of its contract, precluded from voiding the policy for any cause whatever, except failure to pay the premium as provided in the policy.

A different question might arise if the incontestability elause became operative at the date of the issuance of the policy, so that, if there were