71 Pa. Super. 332 | Pa. Super. Ct. | 1919
Opinion by
This is an action by the beneficiary named in two policies of insurance issued by the defendant corporation, upon the life of Mrs. Mary A. Mclsaac, who was the daughter of the plaintiff. The action was brought in the County Court of Allegheny County, which court, after a hearing, entered judgment in favor of the defendant. The plaintiff thereupon presented her petition, fully setting forth the facts,' to the Court of Common Pleas, praying for leave to appeal, that court granted a rule to show cause why the appeal should not be al
There was no dispute as to the facts at the trial in the county court, no testimony was taken, the parties having agreed upon the following facts. Mrs. Mclsaac had obtained one of the policies on March 4, 1907, and the other on April 19, 1909, and continued to be a member in good standing of the defendant association and paid all the premiums on the policies up to January 30,1916, when she died, as the result of an abortion, self-inflicted. The policies contained the following covenant: “If within two years from the date hereof the member has died by suicide, whether sane or insane, this certificate shall be void. If the member shall die at anytime in consequence, directly or indirectly, of his or her own immoral, intemperate or criminal action, this certificate shall be void.” The company defended upon the ground that the death of the insured resulted directly from her own immoral act, and that, under the above covenant it was not liable for the loss. The plaintiff, while admitting the truth of the allegation, contended that the defendant was not exempted from liability by the covenant above quoted because of another covenant contained in the policies, viz: “Incontestability......This certificate shall be incontestable after two years from its date, if all due premiums have been paid, except in case of fraud, and provided the member still has the qualifications necessary to membership of the American Catholic Union.” Does this covenant deprive the defendant of the right to assert a defense founded upon the covenant first above quoted?
That the undisputed facts would, by force of the covenant first above quoted, constitute a complete defense to this action, in the absence of the incontestability clause, is too clear for argument: Wells v. Insurance Company, 191 Pa. 207. The risk of death occurring from the cause here presented was one which the defendant
The judgment is affirmed.