Great Western Life Ins. Co. v. Snavely

• Decision Date: 12 June 1913
• Docket Number: 2,231.
• Citation: 206 F. 20
• Parties: GREAT WESTERN LIFE INS. CO. v. SNAVELY.
• Court: U.S. Court of Appeals — Ninth Circuit

206 F. 20

GREAT WESTERN LIFE INS. CO. v. SNAVELY.

No. 2,231.

United States Court of Appeals, Ninth Circuit.

June 12, 1913

H. J Miller and James F. O'Connor, both of Livingston, Mont for plaintiff in error.

E. M Niles and Fred L. Gibson, both of Livingston, Mont., for defendant in error.

Before GILBERT and MORROW, Circuit Judges, and WOLVERTON, District judge.

WOLVERTON District Judge.

On December 27, 1907, plaintiff in error, in consideration of the sum of $164.70 then paid, and a like sum to be paid in advance for each and every year for 20 years, issued to Arthur G. Snavely a 20-year life policy of insurance for $5,000, payable in case of his death to Esta M. Snavely, his wife, the defendant in error, as beneficiary. The application for the insurance was made a part of the policy. The contract contained, among other things, the following provisions:

'A grace of 30 days, during which this contract will remain in full force, will be allowed in the payment of all premiums except the first.

'In case of default in the payment of any premium or interest, the company will reinstate the contract at any time, if not previously surrendered for its cash value, upon written application by the insured to the company at its home office with evidence of insurability satisfactory to the company, payment of all premiums that would have been paid in the intervening time if no default had been made, with interest thereon at the rate of 5 per cent. per annum computed from the premium due date, and payment or reinstatement, with interest at like rate, of any indebtedness existing at the time of default.

'This contract is incontestable after one year from date of issue.'

The insured defaulted in the second payment, due December 27, 1908, for more than 30 days, and did not pay the same until March 5, 1909; but upon such payment the policy was reinstated by the insurance company. In order to secure the reinstatement, the insured was required to and did sign what is denominated a 'Certificate of Health and Revival Contract,' and among other things made declaration as follows:

'I hereby declare to and agree with said company that I am now in good health and free from every ailment and complaint; * * * that I have not had any injury, sickness, or ailment of any kind; and that I have not consulted or been prescribed for by any physician or received any medical treatment since the date of my original application on which said policy was issued, except as here stated:

'Operation appendicitis, Sept. 1-- 08. Off duty two weeks. Entirely recovered.

'And I hereby renew the statements and agreements contained in said original application, and expressly agree that if any answer or statement contained therein, except as modified in this contract, or if any statement made or contained herein, be untrue in any respect, then said policy is and shall continue to be absolutely null and void, and the reinstatement thereof inoperative and of no effect.'

As a defense the insurance company set up that the reinstatement of the policy was consented to upon the strength of this certificate, and that the same was false, fraudulent, and untrue, in that the insured was then afflicted with a serious malady, of which he subsequently died. The insured paid the third installment of premium when due, and thereafter, to wit, on July 3, 1910, died.

Trial was proceeded with before a jury; but, when the defendant came to offer proof in support of its defense, it was not allowed to introduce such proof, on the ground that the policy was by its terms rendered incontestable. Whereupon a verdict for plaintiff was directed, and from the judgment entered thereon the defendant predicates error.

It is the contention of counsel for plaintiff in error that the representations made by the insured for a reinstatement of the policy are in effect warranties, and, the insured having expressly agreed that if such representations were untrue in...