Aetna Life Ins. Co. v. Kennedy
| Decision Date | 19 March 1929 |
| Docket Number | No. 8275.,8275. |
| Citation | 31 F.2d 971 |
| Parties | ETNA LIFE INS. CO. v. KENNEDY. |
| Court | U.S. Court of Appeals — Eighth Circuit |
David A. Fitch, of Omaha, Neb. (Norris Brown and Ralph M. West, both of Omaha, Neb., on the brief), for appellant.
Before STONE, LEWIS, and COTTERAL, Circuit Judges.
From an order sustaining a motion to dismiss and the dismissal of an amended complaint to cancel a life insurance policy, this appeal is brought.
The amended complaint alleges that William R. Kennedy secured from appellant a policy insuring his life which was executed by appellant August 25, 1927; that this policy was issued upon an application containing the provision "this policy shall not become effective until the first premium upon it is paid during the good health of the insured"; that insured died on September 10th, following, of a disease from which he was suffering at the time the application was made and the policy issued and the first premium paid; that appellant did not discover the facts as to this existing illness until after the death; also that the policy contained a provision that it should be incontestable "after it has been in force during the lifetime of the insured for a period of one year from its date of issue except for non-payment of premium"; that there is a statute of Nebraska providing that such character of policy shall be incontestable "after it shall have been in force during the lifetime of the insured for two years from its date except for non-payment of premiums and except for violation of the conditions of the policy relating to naval and military services in time of war" (Laws Neb., 1925, c. 121); that, because of the above provisions of the statute and of the policy, this equitable action within the period of one year from the date of the policy is necessary to preserve the right of cancellation for the above reason; that the beneficiary might delay suit upon the policy for more than such year so that the matters set up in this bill could not be pleaded in defense; that therefore the only adequate remedy of appellant is this suit within the year.
The grounds of the motion to dismiss were for want of equity, an adequate remedy at law, and lack of jurisdiction in the court. It does not appear from the transcript which of these grounds convinced the trial judge and induced the order of dismissal.
There seems to be no jurisdictional objection, as there is the necessary diversity of citizenship and amount...
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