Scharlach v. Pacific Mut. Life Ins. Co.
| Decision Date | 18 November 1925 |
| Docket Number | No. 4639.,4639. |
| Citation | 9 F.2d 317 |
| Parties | SCHARLACH v. PACIFIC MUT. LIFE INS. CO. |
| Court | U.S. Court of Appeals — Fifth Circuit |
J. D. Wheeler, of San Antonio, Tex. (Boyle, Ezell & Grover, of San Antonio, Tex., on the brief), for plaintiff in error.
John H. Cunningham and John C. Wall, both of San Antonio, Tex. (Taliaferro, Cunningham & Moursund, of San Antonio, Tex., on the brief), for defendant in error.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
This is an action on two $5,000 policies of life insurance. Application for the insurance was made March 29, 1923, and, though the policies are dated October 10, 1923, they were made effective from May 1, 1923, by attached riders or written agreements, in consideration of the payment of initial term premiums, which provide that the insurance company should not be liable until the policies were delivered during the lifetime and good health of the applicant. Each of the policies provides that it should be incontestable after one year, except for nonpayment of premiums or for violation of its conditions relating to military or naval service in time of war. The insured died on July 26, 1923.
The petition alleges that the insured "in all respects complied with the conditions and provisions of said policies." The original answer, which was filed within less than a year from the date of the riders, consisted only of a general denial of the allegations of the petition; but later, and more than a year after the date of the policies, defendant amended its answer, and alleged, among other things, that the insured was not in good health at the time of his application or the delivery of the policies, but that, on the contrary, he was suffering from a number of diseases, and died of cancer of the stomach. Plaintiff filed a motion to strike the amended answer on the ground that the policies had been in force for more than a year, and therefore had become incontestable, except for causes not relied on in the defense sought to be set up. This motion was sustained.
The policies were delivered to the insured, and were received in evidence. The District Judge, before whom the case was tried without a jury pursuant to a stipulation in writing at the close of plaintiff's evidence, being of opinion that the burden was upon plaintiff to prove that the insured was in good health at the time of the delivery of the policies, entered judgment for defendant. Plaintiff sued out this writ of error.
We are of opinion that the plaintiff proved a prima facie case. The...
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Trevino v. American Nat. Ins. Co., 11088.
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