Mareck v. Mut. Reserve Fund Life Ass'n

• Decision Date: 10 July 1895
• Parties: MARECK ET AL. v. MUTUAL RESERVE FUND LIFE ASS'N.
• Court: Minnesota Supreme Court

62 Minn. 39

64 N.W. 68

MARECK ET AL.

v.MUTUAL RESERVE FUND LIFE ASS'N.

Supreme Court of Minnesota.

July 10, 1895.

(Syllabus by the Court.)

The defendant issued to B. a life insurance policy for $5,000, payable at his death to his personal representatives. One clause on the printed policy provided that: “Death of the member by his own hand, whether voluntary or involuntary, sane or insane, is not a risk assumed by the association in this contract; but in every such case there shall be payable, subject to all the conditions of this contract, a sum equal to the amount of the assessments paid by said member, with six per cent. interest; but the board of directors or the executive committee may, in writing, waive the conditions.” Written in ink across the face of the policy, and forming a part of it, was the following: “After five years from the date of this certificate, it is incontestable for any cause, except nonpayment of dues or mortuary assessments, the age of the applicant being correctly stated in the application for the certificate.” The age of the insured was correctly stated in his application, and all dues and mortuary assessments were duly paid up to the time of his death. More than five years after the date of the certificate, the insured came to his death by his own hand. Held, that the “incontestable clause” applied, and that the company was liable for the full sum of $5,000.

Appeal from district court, Hennepin county; Robert D. Russell, Judge.

Action by Titus Mareck, William M. Wright, and John F. Byers, executors of M. J. Befferding, deceased, against the Mutual Reserve Fund Life Association. Plaintiffs had judgment, and defendant appeals. Affirmed.

Cobb & Wheelwright, for appellant.

John F. Byers, for respondents.

MITCHELL, J.

In August, 1886, the defendant issued to one Befferding, plaintiffs' testate, a certificate or policy of life insurance for $5,000, payable to his legal representatives within 90 days after receipt of satisfactory evidence of his death. Paragraph 9 of the policy, which was a printed form, reads as follows: “Death of the member by his own hand, whether voluntary or involuntary, sane or insane, is not a risk assumed by the association on this contract; but in every such case there shall be payable, subject to all the conditions of this contract, a sum equal to the amount of the assessments paid by said member, with six per cent. interest; but the board of directors or the executive committee of the association may, in writing, waive this condition.” Paragraph 11 provides that the policy is issued and accepted subject to the express conditions, among others, that if the insured should remain 48 hours in any place after yellow fever shall have been declared epidemic, and death shall ensue from that disease, or if he shall engage in certain specified hazardous employments, or engage in dueling, etc., and death shall result therefrom, then in every such case the contract shall be null and void, and all payments made thereon forfeited to the association. Written in red ink across the face of the policy, and forming a part thereof, was the following provision: “After five years from the date of this certificate, it is incontestable for any cause, except nonpayment of dues or mortuary assessments at the times and place and in the manner herein provided, the age of the applicant being correctly stated in the application for this certificate.” The age of the insured was correctly stated in his application for the certificate, and he...