incontestable clause in Georgia

1943This right not having been specifically reserved in the incontestable clause, or in sections 1 and 3 of the policies therein referred to, we think, and so hold, that th° *801 proper construction of this incontestable clause is that it precluded the defendant company from making any defense of fraud or material misrepresentations in the procurement of the policies sued on, where the time limit for contesting the policies had expired, as was true in this case.” Counsel for the insurance company insist further that the incontestable clause in the case under consideration differs materially from t

1943This right not having been specifically reserved in the incontestable clause, or in sections 1 and 3 of the policies therein referred to, we think, and so hold, that th° *801 proper construction of this incontestable clause is that it precluded the defendant company from making any defense of fraud or material misrepresentations in the procurement of the policies sued on, where the time limit for contesting the policies had expired, as was true in this case.” Counsel for the insurance company insist further that the incontestable clause in the case under consideration differs materially from t

1941It is to be noted that the exception is, not as to the double indemnity and disability benefits, but as to ‘restrictions and provisions applying to the double indemnity and disability benefits.’” It was also held in the following eases, where the incontestable clauses and provisions were similar to the ones involved in the present ease, that the defense of fraud in the procurement was precluded by the incontestable clause: New York Life Insurance Co. v. Kaufman, 78 Fed. 2d, 398; New York Life Insurance Co. v. Yerys, 80 Fed. 2d, 264; Kiriakides v. Equitable Life Assurance Society, 174 S. C. 140

1941It is to be noted that the exception is, not as to the double indemnity and disability benefits, but as to ‘restrictions and provisions applying to the double indemnity and disability benefits.’” It was also held in the following eases, where the incontestable clauses and provisions were similar to the ones involved in the present ease, that the defense of fraud in the procurement was precluded by the incontestable clause: New York Life Insurance Co. v. Kaufman, 78 Fed. 2d, 398; New York Life Insurance Co. v. Yerys, 80 Fed. 2d, 264; Kiriakides v. Equitable Life Assurance Society, 174 S. C. 140

1980Co. v. Lanier, 114 Ga. App. 277 ( 151 SE2d 161 )).

1980Co. v. Lanier, 114 Ga. App. 277 ( 151 SE2d 161 )).

1944Co., 190 Ga. 891 , 11 S. E. 2d, 20 ; Lockett v. National Life and Accident Ins.

1944Co., 190 Ga. 891 , 11 S. E. 2d, 20 ; Lockett v. National Life and Accident Ins.

1943This right not having been specifically reserved in the incontestable clause, or in sections 1 and 3 of the policies therein referred to, we think, and so hold, that th° *801 proper construction of this incontestable clause is that it precluded the defendant company from making any defense of fraud or material misrepresentations in the procurement of the policies sued on, where the time limit for contesting the policies had expired, as was true in this case.” Counsel for the insurance company insist further that the incontestable clause in the case under consideration differs materially from t

1943This right not having been specifically reserved in the incontestable clause, or in sections 1 and 3 of the policies therein referred to, we think, and so hold, that th° *801 proper construction of this incontestable clause is that it precluded the defendant company from making any defense of fraud or material misrepresentations in the procurement of the policies sued on, where the time limit for contesting the policies had expired, as was true in this case.” Counsel for the insurance company insist further that the incontestable clause in the case under consideration differs materially from t

1943Compare Johnson v. National Life Insurance Co., 134 Ga. 800 ( 68 S. E. 731 ); Interstate Life & Accident Co. v. Bess, 35 Ga. App. 723 ( 134 S. E. 804 ); Life & Casualty Insurance Co. v. Gaines, 59 Ga. App. 545 (2) ( 2 S. E. 2d, 153 ), and in connection with the Gaines case, see Metropolitan Life Insurance Co. v. Becraft, 213 Ind. 378 ( 12 N. E. 2d, 952 , 115 A. L.

1943Compare Johnson v. National Life Insurance Co., 134 Ga. 800 ( 68 S. E. 731 ); Interstate Life & Accident Co. v. Bess, 35 Ga. App. 723 ( 134 S. E. 804 ); Life & Casualty Insurance Co. v. Gaines, 59 Ga. App. 545 (2) ( 2 S. E. 2d, 153 ), and in connection with the Gaines case, see Metropolitan Life Insurance Co. v. Becraft, 213 Ind. 378 ( 12 N. E. 2d, 952 , 115 A. L.

1943Compare Johnson v. National Life Insurance Co., 134 Ga. 800 ( 68 S. E. 731 ); Interstate Life & Accident Co. v. Bess, 35 Ga. App. 723 ( 134 S. E. 804 ); Life & Casualty Insurance Co. v. Gaines, 59 Ga. App. 545 (2) ( 2 S. E. 2d, 153 ), and in connection with the Gaines case, see Metropolitan Life Insurance Co. v. Becraft, 213 Ind. 378 ( 12 N. E. 2d, 952 , 115 A. L.

1943Compare Johnson v. National Life Insurance Co., 134 Ga. 800 ( 68 S. E. 731 ); Interstate Life & Accident Co. v. Bess, 35 Ga. App. 723 ( 134 S. E. 804 ); Life & Casualty Insurance Co. v. Gaines, 59 Ga. App. 545 (2) ( 2 S. E. 2d, 153 ), and in connection with the Gaines case, see Metropolitan Life Insurance Co. v. Becraft, 213 Ind. 378 ( 12 N. E. 2d, 952 , 115 A. L.

1943Compare Johnson v. National Life Insurance Co., 134 Ga. 800 ( 68 S. E. 731 ); Interstate Life & Accident Co. v. Bess, 35 Ga. App. 723 ( 134 S. E. 804 ); Life & Casualty Insurance Co. v. Gaines, 59 Ga. App. 545 (2) ( 2 S. E. 2d, 153 ), and in connection with the Gaines case, see Metropolitan Life Insurance Co. v. Becraft, 213 Ind. 378 ( 12 N. E. 2d, 952 , 115 A. L.

1943Compare Johnson v. National Life Insurance Co., 134 Ga. 800 ( 68 S. E. 731 ); Interstate Life & Accident Co. v. Bess, 35 Ga. App. 723 ( 134 S. E. 804 ); Life & Casualty Insurance Co. v. Gaines, 59 Ga. App. 545 (2) ( 2 S. E. 2d, 153 ), and in connection with the Gaines case, see Metropolitan Life Insurance Co. v. Becraft, 213 Ind. 378 ( 12 N. E. 2d, 952 , 115 A. L.

1942Hosher v. Fitzpatrick, 146 Ga. 525 ( 82 S. E. 1065 ); Hardy v. Phœnix Mutual Life Insurance Co., 180 N. C. *376 180 ( 104 S. E. 366 ); Mutual Life Insurance Co. v. Buford, 61 Okla. 158 ( 160 Pac. 928 ).

1942Although in American Life Insurance Co. v. Stewart, supra, it was held: “No action at law having been brought on the policy, an insurer whose attack upon the ground of fraud is endangered by *586 the running of time limited by the policy for contest may sue in equity for cancellation,” that case involved an incontestable clause with “the provision that the policy shall be incontestable after the lapse of two years,” and is distinguishable from the present case, for the reasons above pointed out.

1942Although in American Life Insurance Co. v. Stewart, supra, it was held: “No action at law having been brought on the policy, an insurer whose attack upon the ground of fraud is endangered by *586 the running of time limited by the policy for contest may sue in equity for cancellation,” that case involved an incontestable clause with “the provision that the policy shall be incontestable after the lapse of two years,” and is distinguishable from the present case, for the reasons above pointed out.

1942In the cases last cited the incontestable clause in each by the terms thereof made the incontestable period run from the date the policy was issued until a specified time, and there were no qualifying words making the incontestable clause applicable “after being in force [for such period] during the insured’s lifetime.” In the instant case the material portion of the incontestable clause reads as follows: “Except for non-payment of premium when due, except for self-destruction as aforesaid, . . this policy shall be incontestable after being in force during th e insured’s lifetime for a period

1942In the cases last cited the incontestable clause in each by the terms thereof made the incontestable period run from the date the policy was issued until a specified time, and there were no qualifying words making the incontestable clause applicable “after being in force [for such period] during the insured’s lifetime.” In the instant case the material portion of the incontestable clause reads as follows: “Except for non-payment of premium when due, except for self-destruction as aforesaid, . . this policy shall be incontestable after being in force during th e insured’s lifetime for a period

1942As a typical statement of this view,, we quote from Teeter v. United Life Assurance Association, 159 N. Y. 411 ( 54 N. E. 72 ), as follows: “Had the original application contained any false statements, the defendant [after the two j'ears specified in the incontestable clause] would have beem *377 prevented by the terms of its contract from setting up their falsity as a defense to the action. . .

1942As a typical statement of this view,, we quote from Teeter v. United Life Assurance Association, 159 N. Y. 411 ( 54 N. E. 72 ), as follows: “Had the original application contained any false statements, the defendant [after the two j'ears specified in the incontestable clause] would have beem *377 prevented by the terms of its contract from setting up their falsity as a defense to the action. . .

1942Hosher v. Fitzpatrick, 146 Ga. 525 ( 82 S. E. 1065 ); Hardy v. Phœnix Mutual Life Insurance Co., 180 N. C. *376 180 ( 104 S. E. 366 ); Mutual Life Insurance Co. v. Buford, 61 Okla. 158 ( 160 Pac. 928 ).

1942Hosher v. Fitzpatrick, 146 Ga. 525 ( 82 S. E. 1065 ); Hardy v. Phœnix Mutual Life Insurance Co., 180 N. C. *376 180 ( 104 S. E. 366 ); Mutual Life Insurance Co. v. Buford, 61 Okla. 158 ( 160 Pac. 928 ).

1942Phillips v. New York Life Insurance Co., 173 Ga. 135 ( 159 S. E. 696 ); New York Life Insurance Co. v. Hollis, 177 Ga. 805 ( 171 S. E. 288 ).

1942Phillips v. New York Life Insurance Co., 173 Ga. 135 ( 159 S. E. 696 ); New York Life Insurance Co. v. Hollis, 177 Ga. 805 ( 171 S. E. 288 ).

1942Phillips v. New York Life Insurance Co., 173 Ga. 135 ( 159 S. E. 696 ); New York Life Insurance Co. v. Hollis, 177 Ga. 805 ( 171 S. E. 288 ).

1942Phillips v. New York Life Insurance Co., 173 Ga. 135 ( 159 S. E. 696 ); New York Life Insurance Co. v. Hollis, 177 Ga. 805 ( 171 S. E. 288 ).

1942New York Life Insurance Co. v. Dandridge (Ark.), 149 S. W. 2d, 45 , 134 A. L.

1942Hosher v. Fitzpatrick, 146 Ga. 525 ( 82 S. E. 1065 ); Hardy v. Phœnix Mutual Life Insurance Co., 180 N. C. *376 180 ( 104 S. E. 366 ); Mutual Life Insurance Co. v. Buford, 61 Okla. 158 ( 160 Pac. 928 ).

1942Hosher v. Fitzpatrick, 146 Ga. 525 ( 82 S. E. 1065 ); Hardy v. Phœnix Mutual Life Insurance Co., 180 N. C. *376 180 ( 104 S. E. 366 ); Mutual Life Insurance Co. v. Buford, 61 Okla. 158 ( 160 Pac. 928 ).

1942In the cases last cited the incontestable clause in each by the terms thereof made the incontestable period run from the date the policy was issued until a specified time, and there were no qualifying words making the incontestable clause applicable “after being in force [for such period] during the insured’s lifetime.” In the instant case the material portion of the incontestable clause reads as follows: “Except for non-payment of premium when due, except for self-destruction as aforesaid, . . this policy shall be incontestable after being in force during th e insured’s lifetime for a period

1942In the cases last cited the incontestable clause in each by the terms thereof made the incontestable period run from the date the policy was issued until a specified time, and there were no qualifying words making the incontestable clause applicable “after being in force [for such period] during the insured’s lifetime.” In the instant case the material portion of the incontestable clause reads as follows: “Except for non-payment of premium when due, except for self-destruction as aforesaid, . . this policy shall be incontestable after being in force during th e insured’s lifetime for a period

1942And it seems to us, after an examination of the contract, that the defendant had two years after the reinstatement of the contract within which to investigate the condition of [insured’s] health at the time of the making of the reinstatement certificate, and that after that time the 'policy again became incontestable.” See also Pacific Mutual Life Insurance Co. v. Galbraith, 115 Tenn. 471 ( 91 S. W. 204 , 112 Am.

1941And applying the settled rule, the insured is entitled to the benefit of the resulting doubt.” In Ness v. Mutual Life Insurance Co., 70 Fed. 2d, 59, Mutual Life Insurance Co. v. Markowitz, 78 Fed. 2d, 396, and Mutual Life Insurance Co. v. Margolis, 11 Cal. App. 2d, 382 ( 53 Pac. 2d, 1017 ), where the incontestable clauses and sections 1 and 3 in the policies of insurance were identical with those in the Stroehmann ease and the ones involved in the present case, it was held that the insurance company was precluded by the incontestable clause from contesting liability for disability benefits on

1941And applying the settled rule, the insured is entitled to the benefit of the resulting doubt.” In Ness v. Mutual Life Insurance Co., 70 Fed. 2d, 59, Mutual Life Insurance Co. v. Markowitz, 78 Fed. 2d, 396, and Mutual Life Insurance Co. v. Margolis, 11 Cal. App. 2d, 382 ( 53 Pac. 2d, 1017 ), where the incontestable clauses and sections 1 and 3 in the policies of insurance were identical with those in the Stroehmann ease and the ones involved in the present case, it was held that the insurance company was precluded by the incontestable clause from contesting liability for disability benefits on

1941It is to be noted that the exception is, not as to the double indemnity and disability benefits, but as to ‘restrictions and provisions applying to the double indemnity and disability benefits.’” It was also held in the following eases, where the incontestable clauses and provisions were similar to the ones involved in the present ease, that the defense of fraud in the procurement was precluded by the incontestable clause: New York Life Insurance Co. v. Kaufman, 78 Fed. 2d, 398; New York Life Insurance Co. v. Yerys, 80 Fed. 2d, 264; Kiriakides v. Equitable Life Assurance Society, 174 S. C. 140

1941It is to be noted that the exception is, not as to the double indemnity and disability benefits, but as to ‘restrictions and provisions applying to the double indemnity and disability benefits.’” It was also held in the following eases, where the incontestable clauses and provisions were similar to the ones involved in the present ease, that the defense of fraud in the procurement was precluded by the incontestable clause: New York Life Insurance Co. v. Kaufman, 78 Fed. 2d, 398; New York Life Insurance Co. v. Yerys, 80 Fed. 2d, 264; Kiriakides v. Equitable Life Assurance Society, 174 S. C. 140

1941It is to be noted that the exception is, not as to the double indemnity and disability benefits, but as to ‘restrictions and provisions applying to the double indemnity and disability benefits.’” It was also held in the following eases, where the incontestable clauses and provisions were similar to the ones involved in the present ease, that the defense of fraud in the procurement was precluded by the incontestable clause: New York Life Insurance Co. v. Kaufman, 78 Fed. 2d, 398; New York Life Insurance Co. v. Yerys, 80 Fed. 2d, 264; Kiriakides v. Equitable Life Assurance Society, 174 S. C. 140

1940Mutual Reserve Fund Life Asso. v. Austin, 142 Fed. 398 (6 L.

1933A construction which renders the clause self-destructive and of no avail to the assured is to be avoided, ‘parties to a contract are always to be supposed to have intended something, rather than nothing by what they have said.’ ” See also Grier v. Mutual Life Insurance Co., 132 N. C. 542 ( 44 S. E. 28 ).

1933A construction which renders the clause self-destructive and of no avail to the assured is to be avoided, ‘parties to a contract are always to be supposed to have intended something, rather than nothing by what they have said.’ ” See also Grier v. Mutual Life Insurance Co., 132 N. C. 542 ( 44 S. E. 28 ).