INCONTESTABLE CLAUSE   211

SCARBOROUGH v. AMERICAN NAT. INS. CO.

Supreme Court of North Carolina, 1916.
171 N. Car. 353, 88 S. E. 482, L. R. A. 1918A,
896, Ann. Cas. 1917D, 1181.

Civil action to recover on a life insurance policy. * * * There was a verdict and judgment for the plaintiff. Defendant appealed. * * *

BROWN, J. The defendant insured the life of Willie Bell, payable to his mother, Kitty Bynum, with right to change the beneficiary. The plaintiffs are the beneficiaries and are entitled to recover if the policy is in force. Willie Bell, the insured, was electrocuted on July 8, 1915, in accordance with the sentence of the law, for the crime of murder. The policy contains no provision stipulating either for or against the liability of the company in the event the insured's life was taken in punishment for the violation of the laws of the State. The policy does, however, contain this provision: "This policy shall be incontestable after two years from its date of issue for the amount due, provided premiums have been duly paid, except for fraud."

Upon the facts stated, the only question presented on this appeal is, Does an ordinary life insurance policy, in the absence of any provision in regard thereto, insure against death by act of the law administered as a punishment for the commission of a capital felony? * * *

The incontestable clause in this policy does not prevent the de fendant from setting up the defense interposed in this action.

By the use of the term "incontestable" the parties must necessarily mean that the provisions of the policy will not be contested, and not that the insurance company agrees to waive the right to defend itself against a risk which it never contracted to assume. In Collins v. Metropolitan Life Ins. Co., 27 Pa. Super. Ct. 345, the Court in a case precisely like the one at bar, in construing the in-contestable clause, used the following language: "By its terms it is not the claim presented by the insured, irrespective of the cause of death, which is made incontestable; it is merely the validity of the policy as an obligation binding upon the company." * * *

Upon the agreed statement of facts, the judgment of the Superior Court is reversed. Let judgment be entered in the court below in favor of the plaintiff against the defendant for the sum of $11.40, the sum tendered by the defendant and refused by the plaintiff. All the costs of this Court and the Superior Court will be taxed against the plaintiff. Reversed.