Dibell, C.
This action is brought to recover upon a policy of life insurance issued to the plaintiff’s son. The plaintiff is the beneficiary and the verdict was in her favor. The defendant appeals from an order denying its alternative motion for judgment or for a new trial.
The defendant claims that the policy was avoided, as a matter of law, by a misrepresentation to the effect that the deceased had never consulted a physician; that the court erred in leaving to the jury the question whether certain misrepresentations were material and whether they increased the risk of loss and whether they were made with intent to deceive and defraud; and that it erred in leaving to the jury the question whether the deceased made a certain misrepresentation.
Subdivision 4, § 5, c. 220, p. 290, Laws 1907, found in R. L. Supp. 1909, § 1695-6, subd. 4, requires the standard life policy to contain, among other provisions, the following:
“A provision that all statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties, and that no such statement shall avoid the policy unless it is contained in a written application and a copy of such application shall be indorsed upon or attached to the policy when issued.”
Section 20, c. 175, p. 400, Laws 1895, now section 1623, E. L. 1905, is as follows:
“No oral or written misrepresentation made by the assured, or in his behalf, in the negotiation of insurance, shall be deemed material, or defeat or avoid the policy, or prevent its attaching, unless made with intent to deceive and defraud, or unless the matter misrepresented increases the risk of loss.”
Before the revision section 1623 read “with actual intent to deceive and defraud.”
The policy in suit is a standard life policy, of the statutory form, contains the provision required by the Laws of 1907, and a copy of the application is attached to the policy.
The effect of the statutes cited is for determination.
A representation is a statement proffered as a basis for an insurance contract. A warranty is a statement or covenant of the contract. Eepresentations must be substantially true. Warranties must be strictly or literally fulfilled.
Our statutes, and statutes like them, were intended to put warranties upon substantially the basis of representations and to do away with defenses made by incorporating conditions and terms in policies, making them by agreement material representations or warranties, and controlling on the right of recovery. As we construe the statute a material misrepresentation, made with intent to deceive and defraud, avoids the policy. A material misrepresentation, not made with intent to deceive or defraud, does not avoid the policy, unless by the misrepresentation the risk of loss is increased. If a material misrepresentation increases the risk of loss the policy is avoided, regardless of the intent with which it was made. An immaterial representation, though made with intent to deceive and defraud, does not avoid the policy.
Several of the states have statutes of like purpose and some are couched in language substantially identical. The cases construing such statutes uniformly hold that the last “or” in section 1623 is used in the alternative. We bow to the authority of the cases and adopt their construction. The following cases indicate the general purpose of such statutes and they are in general harmony with the construction which we adopt: Levie v. Metropolitan Life Ins. Co. 163 Mass. 117, 39 N. E. 792; White v. Provident S. L. A. Soc. 163 Mass. 108, 39 N. E. 771, 27 L.R.A. 398; Rainger v. Boston Mut. Life Assn. 167 Mass. 109, 44 N. E. 1088; Dolan v. Mutual Reserve F. L. Assn. 173 Mass. 197, 53 N. E. 398; Empire Life Ins. Co. v. Gee, 171 Ala. 435, 55 South. 166, 60 South. 90; Mutual Life Ins. Co. v. Allen, 174 Ala. 511, 56 South. 568; Insurance Co. v. Stallings, 110 Tenn. 1, 72 S. W. 960; Light v. Ins. Co. 105 Tenn. 480, 58 S. W. 851; Hermany v. Fidelity Mut. Life Assn. 151 Pa. St. 17, 24 Atl. 1064; Lutz v. Metropolitan Life Ins. Co. 186 Pa. St. 527, 40 Atl. 1104; Penn Mut. Life Ins. Co. v. Mechanics Sav. Bank, 72 Fed. 413, 19 C. C. A. 286, 38 L.R.A. 33, 70; Id. 73 Fed. 653, 19 C. C. A. 316, 38 L.R.A. 33, 70; Warren Deposit Bank v. Fidelity & Deposit Co. 116 Ky. 38, 25 Ky. L. Rep. 289, 74 S. W. 1111; Provident Sav. Soc. v. Whayne’s Admr. 131 Ky. 84, 23 Ky. L. Rep. 160, 93 S. W. 1049; March v. Metropolitan Life Ins. Co. 186 Pa. St. 629, 40 Atl. 1100, 65 Am. St. 887; Fidelity Mut. Life Assn. v. Miller, 34 C. C. A. 211, 92 Fed. 63; Mutual Life Ins. Co. v. Robinson, 115 Md. 408, 80 Atl. 1085. The case of Price v. Standard Life & Accident Co. 90 Minn. 264, 95 N. W. 1118, seems to be in accord.
Some of the cases cited seem to hold that a misrepresentation made with intent to deceive and defraud, though the matter misrepresented is immaterial in character, avoids the policy. We do not stop to* inquire how many, if any, directly and necessarily so hold. We cannot adopt such a doctrine. Long prior to the statute this court held that a fraudulent misrepresentation of an immaterial matter did not avoid the policy; and the 1895 law was not intended to make the insurer’s liability less.
Whether a misrepresentation is material, and whether the misrepresentation increases the risk of loss, and whether a misrepresentation is made with intent to deceive and defraud, are questions usually for the jury, with the burden of proof upon the insurer. They may, be for the court. Levie v. Metropolitan Life Ins. Co. 163 Mass. 117, 39 N. E. 792; Rainger v. Boston Mut. Life Ins. Co. 167 Mass. 109, 44 N. E. 1088; Mattson v. Modern Samaritans, 91 Minn. 434, 98 N. W. 330; Hermany v. Fidelity Mut. Life Assn. 151 Pa. St. 17, 24 Atl. 1064; Provident Sav. Assn. v. Whayne’s Admr. 131 Ky. 84, 29 Ky. L. Kep. 160, 93 S. W. 1049; Taylor v. Grand Lodge A. O. U. W. 96 Minn. 441, 105 N. W. 408, 3 L.R.A.(N.S.) 114; O’Connor v. Modern Woodmen of America, 110 Minn. 18, 124 N. W. 454, 25 L.R.A.(N.S.) 1244.
The defendant claims that it appears from the evidence, so that it should be declared as a matter of law, that the insured, with intent to deceive and defraud, made-material misrepresentations to the effect that he had never consulted a physician, that a change of climate had never been advised nor sought for his health, and that he was at the time in good health; and that as a matter of law these misrepresentations were material and increased the risk of loss.
It appears that four years before the application for insurance the insured consulted a physician. There was testimony, over the objection of the plaintiff, that the physician diagnosed the case as one of incipient tuberculosis and advised the deceased that to effect a cure he must live in the open air and change his habits of living. He went to Montana and worked for a year in railway yards. He came back to his home and worked on the farm. He again went to Montana for awhile, finally returning to the farm for a permanent stay. The testimony was ample that he appeared to be in good health and was doing the work of an ordinary man. The examining physician found nothing the matter with him when he made his examination. Some weeks before his death he caught cold through exposure at a farm party. There was testimony of his attending physician, received over objection, that he died of tuberculosis. There was testimony negativing the claim that he died of tuberculosis at all. The insured was a farm boy and was sought out by the agent of the company and solicited to purchase insurance.
The evidence just recited bears upon the materiality of the representations, the increase of risk, and the intent to deceive and defraud. There was error in receiving evidence of the physician as to the condition of the insured at the time he treated him some four years prior to his application. It is doubtful whether a foundation was laid for an objection to it. The effect and admissibility of the physician’s statements in the proofs of loss should be considered from the standpoint of an admission of the beneficiary. Upon another trial these questions, as well as the questions arising upon the physician’s direct testimony as to the cause of the death of the deceased, will doubtless be properly determined. Upon the record before us we need express no opinion as to the merits of the case, though it .may be said that with all things conceded to the defendant there is little evidence of an intent on the part of the insured to deceive or ‘defraud.
The following question and answer appear in the application: “Q. When did you last consult a physician and for what ? A. Never.”
It is conceded that four years prior the insured had consulted a physician for some ailment. The court left it to the jury to find whether this answer was made. In doing so it erred. Upon another trial there may be an issue for a jury upon this question. There was none upon the trial had. There must be a new trial.
Order reversed.