279 Pa. 507 | Pa. | 1924
Opinion by
The policy of insurance on which suit was brought contained a clause, “This policy......shall be incontestable after two years from its date of issue except for nonpayment of premiums.” The insured died within-two years from its date of issue, but proof of death was filed thereafter. Defendant refused to pay the insurance on the ground that the insured had made material representations relative to his risk that were false. In answer to the interrogatory whether he had been refused insurance by another company, he replied he had not, when the fact was three or four companies had refused him insurance. The company did nothing until proof of death was filed and this suit begun. We now have the question whether death fixes all rights of the parties under the policy.
The great weight of authority supports the position that the insurer must at least disavow liability within the contestable period to be relieved, — not necessarily by legal action, but some definite step, specifying the
While it is true a cause of action arises at the death of the insured, the terms of the policy are not changed; and, though payment of the insurance money is the result of death, and payment of premium ceases, the incontestable stipulation is not affected; it survives and continues in unbroken force until it expires by its own limitation, two years from the date of issue. The insurer is not placed at any disadvantage; its position is not in the slightest degree affected. It is in precisely the same position as if the insured had lived during the two years. Had the policy read, two years from the date thereof, “provided the insured does not die within the two years,” a different question would be presented.
While the point has not been directly decided in this State, it was considered by President Judge Rice in Central Trust Co. v. Fidelity Mutual Life Ins. Co., 45 Pa. Superior Ct. 313, 317: “Its purpose is not to preclude inquiry into the truthfulness or good faith of the statements made in the application, but to fix a time within which such inquiry shall be made. This is unquestion
The cases cited by appellant do not control. The difference in the language of the incontestable clauses distinguishes the cases. The court did not err in entering judgment for want of sufficient affidavit of defense.
Judgment affirmed.