Wright v. Philadelphia Life Ins. Co.

• Decision Date: 17 November 1927
• Citation: 25 F.2d 514
• Court: U.S. District Court — District of South Carolina
• Parties: WRIGHT v. PHILADELPHIA LIFE INS. CO. OF PHILADELPHIA, PA.

25 F.2d 514 (1927)

WRIGHT v. PHILADELPHIA LIFE INS. CO. OF PHILADELPHIA, PA.

District Court, E. D. South Carolina.

November 17, 1927.

Lee & Moise and Harmon D. Moise, all of Sumter, S. C., for plaintiff.

Thomas & Lumpkin, of Columbia, S. C., and Edward J. Boughton, of Philadelphia, Pa., for defendant.

ERNEST F. COCHRAN, District Judge.

This is an action at law upon a life insurance policy, and the defense is suicide. The defendant now moves for a directed verdict in its favor, on the ground that the suicide occurred within two years from the date of the policy and is a risk which by the terms of the policy was not assumed. The plaintiff contends that the policy provides that it shall be incontestable after two years from its date, and that, inasmuch as defendant did not institute any contest within the two-year period, the defense of suicide is no longer available.

These provisions of the policy are contained in this paragraph:

"This policy shall be incontestable, except for nonpayment of premiums, after two years from its date. From date of issue this policy shall be without any restrictions as to travel, residence or occupation. If the age of the insured has been misstated, the amount payable hereunder shall be such a sum as the premium actually paid would have purchased at the correct age. Self-destruction while sane or insane, within two years of the date hereof, is a risk not assumed by the Company under this policy. All statements made by the insured shall in the absence of fraud be deemed representations and not warranties."

The policy was issued on July 1, 1924 (No. 80923), and the insured came to his death on May 30, 1926. No contest was instituted prior to July 1, 1926. This action on the policy was instituted by the plaintiff on December 4, 1926. The evidence shows that the insured came to his death by his own hand and there is no issue of fact for the jury. The plaintiff contends that this court is committed by its previous decision (Philadelphia Life Ins. Co. v. Burgess, 18 F.2d 599, 601) to the view that the incontestable clause in this case applies. In that case, however, the question was not squarely raised by either side. It was merely suggested, and as I recall it suggested by the court rather than counsel. No authorities were cited, and neither counsel argued the question, and the impression made upon my mind, as I said to counsel at the time, in perhaps rather homely language, was that each side looked upon the point as a red hot poker; for, if they made the point in the one case, it was going to hurt them in the other. A ruling on that point was not necessary to the decision in that case, for the court merely retained the case as to the defendant Sallie W. Burgess individually, and she had answered, set up a counterclaim, and there had been a reply thereto, and she thereby waived any question of there being a want of equity in the bill. In addition to that (although it does not appear in the case as reported in 18 F.2d 599), the fact is that counsel for Mrs. Burgess, in their oral argument, stated that they did not ask a dismissal of the cause of action based on policy No. 80922, but...