191 Ind. 638 | Ind. | 1922
—Appellee sued appellant on a policy of insurance on the life of his decedent which was dated May 14, 1917, and contained a provision that the policy should be “incontestable after one year, except for nonpayment of premium or for violation of the conditions of the policy relating to military or naval service in time of war,” and recited that in consideration of $250, “constituting payment of the premium for the period terminating on May 14, 1918, and in further consideration of a like payment on said last mentioned date, and thereafter on the 14th day of May in each and every year during the continuance of the policy, until forty-two premiums in all shall have been paid or until the prior death of the insured,” the appellant company would pay $10,000 to the insured on May 14, 1959, if then living, or would pay that sum to his estate upon proof of his death. The complaint alleged the execution of this policy and payment of the first premium, and that at the time it was paid appellant gave a receipt, dated May 14, 1917, which recited that it “acknowledges receipt of $288.50 in payment of annual premium * * * continuing policy in force to May 14, 1918.” It further alleged that the insured died March 17, 1918, and that due proof of his death was made on blanks furnished by the appellant company for that purpose.
Appellant filed an answer that it had rescinded the policy on account of fraud in procuring it to be issued, and at the same time paid into court the amount of the premium received, and accrued interest. This answer was afterward amended. As finally made to read, after repeated amendments, each paragraph alleged such fraudulent misconduct of the insured in procuring the
The question is presented whether the notice of rescission and offer to return the premium received was within the time allowed by the contract for contesting appellant’s liability on the ground of fraud in obtaining the policy, or whether appellant failed to give the notice and make the offer until “after one year,” when the policy, by its terms, had become incontestable on that ground.
The judgment is affirmed.