the event suit should be brought by the insured within -effect of bringing action on the limitation, we running of time. cannot read such a provision into it. Defendant was therefore precluded from contesting the policies at the time it filed its pleas.

This court, in the case of Guthrie v. Connecticut Indemnity Asso. 101 Tenn. 643, 49 S. W. 829, held that a contractual limitation of action contained in an insurance policy is not affected by the rules of law governing statutes of limitation. In that case the court said: "While it is true the original suit was dismissed for insufficient service of process, and not for any cause concluding plaintiff's right of action, we are of opinion that the statute is wholly inapplicable in the present instance. It clearly refers to statutory, and not to contractual, limitations; for otherwise a statute could be made utterly subversive of contracts executed by parties upon the most deliberate consideration. It was held by the United States Supreme Court, in Riddlesbarger v. Hartford F. Ins. Co. 7 Wall. 386, 19 L. ed. 257, that 'the contractual limitation is not affected by the fact that a previous action, which was dismissed, had been commenced within that period, and that the statute of a state which allows a party who suffers a nonsuit in an action to bring a new action for the same cause within one year afterwards does not affect the rights of the parties in such a case.' This must be true, for, if the contractual limitation is valid, the parties are not bound by the general limitation of the statute, and, for a like reason, they are not bound by the savings of the statute. The question is purely one of contract, and is not reg

ulated by the terms of the statute. "The rights of the parties,' says Field, J., 'flow from the contract. That relieves them from the general limitations of the statute, and, as a consequence, from its exceptions also.' In Riddlesbarger v. Hartford F. Ins. Co. supra, the court said: "The action mentioned which must be commenced within the twelve months is the one which is prosecuted to judgment. The failure of a previous action, from any cause, cannot alter the case. The contract declares that an action shall not be sustained unless such action -not some previous action-shall be commenced within the period designated. It makes no provision for any exception in the event of the failure of an action commenced, and the court cannot insert one without changing the contract.' This view is supported by the cases of Wilkinson v. First Nat. F. Ins. Co. 72 N. Y. 499; Arthur v. Homestead F. Ins. Co. 78 N. Y. 462, 34 Am. Rep. 550; Brown v. Roger Williams Ins. Co. 7 R. I. 301; Farmers' Mut. F. Ins. Co. v. Barr, 94 Pa. 345; National Ins. Co. v. Brown, 128 Pa. 386, 18 Atl. 389; Hocking v. Howard Ins. Co. 130 Pa. 170, 18 Atl. 614; Ostrander, Ins. §§ 410, 411; 2 Beach, Ins. §§ 1258-1265; Joyce, Ins. § 3205."

The petition to rehear will therefore be denied.

NOTE.

The effect upon the incontestable clause, of the death of the insured within the contestable period, is treated in the annotation following MUTUAL L. INS. Co. v. HURNI PACKING Co. post, 108, in connection with the question as to the time when an incontestable clause becomes effective.

icies was defended on the ground that the insured had made certain fraudulent representations to the company in his application for the insurance, which were false, and which induced the company to issue the policies.

The cases were consolidated for the purposes of trial. At the first trial, the jury failed to agree, and was discharged from further consideration of the case. The cases were continued until the next term of the court. At the next term of the court, a mistrial resulted from the serious illness and physical inability of one of the jurors selected to try the case.

Subsequently, on July 4, 1922, the plaintiff filed an amendment to her complaint. Among other things, she set up the incontestable clause above quoted, and alleged that the defendant did not, within one year from the date of the policies, contest the same, and that it is, by the terms of the policies, forever barred and estopped from contesting the

same.

The defendant filed an answer in each case in which it admits that each policy of insurance contains an incontestable clause in the language set out in the complaint, and the language of the clause is again set out in the answer. The answer admits the issuance of the policies on May 29, 1918; that the insured died. January 6, 1919; and that, in sixty days thereafter, notice of the death of the insured was given to the defendant; but it denies that the defendant is, by the terms of said policies, barred from contesting the same. The answer further alleges that the actions were commenced on the 27th day of May, 1919, within one year from the date of the policies sued on, and for that reason that the incontestable clause is not applicable. The defendant, further answering, states that on the 25th day of March, 1919, which was within one year from the date of the policies sued on, the defendant notified the plaintiff that it did not recognize any liability on said policies

on account of the fraud practised upon it by the insured in the procurement of the policies.

The plaintiff demurred to the amended answer, and the demurrer was sustained by the court. The defendant elected to stand upon its amended answer in each case and refused to plead further. Judgment was thereupon rendered in favor of the plaintiff for the amount sued for, and to reverse that judgment the defendant has duly prosecuted an appeal to this court.

Messrs. Lake & Lake, A. P. Steel, and J. S. Steel, for appellant:

The incontestable provision in the policies did not apply where the death of the insured occurred and suit was commenced upon the policies by the beneficiary within the contestable period.

Jefferson Standard L. Ins. Co. v. Smith, 157 Ark. 499, 248 S. W. 897; Tennessee L. Ins. Co. v. Nolen, 108 Ark. 511, 158 S. W. 775.

There was a contested policy within the meaning of that term as used in the contract of insurance.

Mutual L. Ins. Co. v. Hurni Packing Co. 280 Fed. 18; Joseph v. New York L. Ins. Co. 219 Ill. App. 467; Simpson v. Life Ins. Co. 115 N. C. 393, 20 S. E. 517; Kansas Mut. L. Ins. Co. v. Whitehead, 123 Ky. 21, 93 S. W. 609, 13 Ann. Cas. 301.

Messrs. A. D. DuLaney, Paul Jones, and James D. Head, for appellee:

The policy was incontestable.

Tennessee L. Ins. Co. v. Nolen, 108 Ark. 511, 158 S. W. 775; 14 R. C. L.

1438, § 601; Lincoln Reserve L. Ins. Co. v. Smith, 134 Ark. 245, 203 S. W. 698; Brotherhood of R. Trainmen v. Merideth, 146 Ark. 140, 225 S. W. 337; Fidelity & C. Co. v. Meyer, 106 Ark. 91, 44 L.R.A. (N.S.) 493, 152 S. W. 995.

The word "contest" in insurance policies has invariably been held to mean either the institution of an action of contest by the company, or the filing of an answer within the prescribed time, attacking the validity of the policy.

Wright v. Mutual Ben. Life Asso. 43 Hun, 61, affirmed in 118 N. Y. 237, 6 L.R.A. 731, 16 Am. St. Rep. 749, 23 N. E. 186; Moran v. Moran, 144 Iowa, 451, 30 L.R.A. (N.S.) 898, 123 N. W. 202; Indiana Nat. L. Ins. Co. v. McGinnis, 180 Ind. 9, 45 L.R.A. (N.S.) 192, 101 N. E. 289; American Trust

The contest must be instituted within one year.

Jefferson Standard L. Ins. Co. v. Wilson, 171 C. C. A. 357, 260 Fed. 593; Ebner v. Ohio State L. Ins. Co. 69 Ind. App. 32, 121 N. E. 315; Indiana Nat. L. Ins. Co. v. McGinnis, 180 Ind. 9, 45 L.R.A. (N.S.) 192, 101 N. E. 289; Plotner v. Northwestern L. Ins. Co. N. D., 183 N. W. 1000; Lavelle v. Metropolitan L. Ins. Co. 209 Mo. App. 330, 238 S. W. 504; Monahan v. Metropolitan L. Ins. Co. 283 Ill. 136, L.R.A. 1918D, 1196, 119 N. E. 68; Ramsey v.

Old Colony L. Ins. Co. 297 Ill. 592, 131 N. E. 108; Hardy v. Phoenix Mut. L. Ins. Co. 180 N. C. 180, 104 S. E. 166; Reliance L. Ins. Co. v. Thayer, 84 Okla. 238, 203 Pac. 190; Metropolitan L. Ins. Co. v. Peeler, Okla. 6 A.L.R. 441, 176 Pac. 939; Mutual L. Ins. Co. v. Lovejoy, 201 Ala. 337, L.R.A.1918D, 860, 78 So. 299; Supreme Lodge, K. P. v. Overton, 203 Ala. 193, 16 A.L.R. 649, 82 So. 443; Porter v. Mutual L. Ins. Co. 70 Vt. 504, 41 Atl. 970; Murray v. State Mut. L. Ins. Co. 22 R. I. 524, 53 L.R.A. 742, 48 Atl. 800; American Trust Co. v. Life Ins. Co. 173 N. C. 558, 92 S. E. 706; Reagan v. Union Mut. L. Ins. Co. 189 Mass. 555, 2 L.R.A. (N.S.) 821, 109 Am. St. Rep. 659, 76 N. E. 217, 4 Ann. Cas. 362; Duvall v. National L. Ins. Co. 28 Idaho, 356, L.R.A.1917E, 333, 154 Pac. 632, Ann. Cas. 1917E, 1112; Clement v. New York L. Ins. Co. 101 Tenn. 22, 42 L.R.A. 247, 70 Am. St. Rep. 650, 46 S. W. 561.

Hart, J., delivered the opinion of the court:

Each of the policies of insurance

sued on was issued by the defendant on the 29th day of May, 1918, and the insured, Burrel A. Cranford, died on the 6th day of January, 1919. Proof of death of the insured was given to the defendant by the wife, who was the beneficiary in each policy. Payment was refused by the company on the ground that the insurance had been procured by false representations of a material character which had been made by the insured in his application, for the purpose of procuring the policies of insurance.

No answer was filed to the present suit within one year after the date of the insurance policies, and no suit has been brought by the insurance company to set aside the contract of insurance because it had been procured by fraudulent representations on the part of the insured.

Thus it will be seen that the sole issue raised by the appeal depends upon the construction to be given the incontestable clause, which is set out in full in our statement of facts. In substance, it provides that the policies shall be incontestable after paid, except for the violation of the one year if the premiums are duly provision relating to military or naval service in time of war. The

testable clause,

modern rule is that Insurancea life insurance pol- effect of inconicy containing a provision that it shall be incontestable after a specified time cannot be contested by the insurer on any ground not excepted in that provision. It is said that the practical and intended effect of such a stipulation is to create a short statute of limitations. By the stipulation, the insurance company agreed that it would take a year to investigate and determine whether it would contest the policies of insurance; and that, if it failed within that time to discover any grounds for contesting the same, it would make no further investigation, and would not thereafter contest the validity of the policies.

It has been uniformly held that a

-validity of incontestable

clause.

provision of this kind is valid where the time allowed for the investigation is a reasonable period. Policies of insurance are prepared by the insurance companies, and the insured has no voice in their preparation. Clauses of this kind are evidently inserted in insurance policies by the insurer for the mutual advantage of both the insurer and the insured. It has been well said that such a provision is reasonable and proper because it gives the insured a guaranty against expensive litigation to defeat his policy after the lapse of the time specified, and at the same time gives the company a reasonable time and opportunity to ascertain whether the contract should remain

in force. Such a stipulation is not against public policy as tending to put fraud on a par with honesty. On the contrary, the stipulation recognizes fraud and all other defenses, but provides a reasonable time in which they may be, but beyond which they may not be, established. Therefore, it is in the nature of, and serves a similar purpose as, a statute of limitations, the wisdom of which has been universally recognized.

As said by Judge Mitchell in Mareck v. Mutual Reserve Fund Life Asso. 62 Minn. 39, 54 Am. St. Rep. 613, 64 N. W. 68, an incontestable clause is inserted in the contract by the company itself, and is written there for a purpose. After holding such a stipulation to be valid, the learned judge said: "To the laymen the present contest would, as plaintiffs' counsel suggests, appear very much like a contest over an incontestable policy."

Numerous other cases from the various courts of last resort in the United States are cited in a case note to 6 A.L.R. at page 453. Among these we cite the following: Arnold v. Equitable Life Assur. Soc. (D. C.) 228 Fed. 157; Great Western L. Ins. Co. v. Snavely, 46 L.R.A. (N.S.) 1057, 124 C. C. A. 154, 206 Fed. 20; Dibble v. Reliance L. Ins.

Co. 170 Cal. 199, 149 Pac. 171, Ann. Cas. 1917E, 34; Prudential Ins. Co. v. Lear, 31 App. D. C. 184; Massachusetts Ben. Life Asso. v. Robinson, 104 Ga. 256, 42 L.R.A. 261, 30 S. E. 918; Weil v. Federal L. Ins. Co. 264 Ill. 425, 106 N. E. 246, Ann. Cas. 1915D, 974; Indiana Nat. L. Ins. Co. v. McGinnis, 180 Ind. 9, 45 L.R.A. (N.S.) 192, 101 N. E. 289; Kansas Mut. L. Ins. Co. v. Whitehead, 123 Ky. 21, 93 S. W. 609, 13 Ann. Cas. 301; Mutual L. Ins. Co. v. New, 125 La. 41, 27 L.R.A. (N.S.) 431, 136 Am. St. Rep. 326, 51 So. 61; Reagan v. Union Mut. L. Ins. Co. 189 Mass. 555, 2 L.R.A. (N.S.) 821, 109 Am. St. Rep. 659, 76 N. E. 217, 4 Ann. Cas. 362; Harris v. Security L. Ins. Co. 248 Mo. 304, 154 S. W. 68, Ann. Cas. 1914C, 648; Drews v. Metropolitan L. Ins. Co. 79 N. J. L. 398, 75 Atl. 167; Wright v. Mutual Ben. Life Asso. 118 N. Y. 237, 6 L.R.A. 731, 16 Am. St. Rep. 749, 23 N. E. 186; American Trust Co. v. Life Ins. Co. 173 N. C. 558, 92 S. E. 706; Murray v. State Mut. L. Ins. Co. 22 R. I. 524, 53 L.R.A. 742, 48 Atl. 800; Metropolitan L. Ins. Co. v. Peeler, Okla., 6 A.L.R. 441, 176 Pac. 939; Supreme Lodge, K. P. v. Overton, 203 Ala. 193, 16 A.L.R. 649, 92 So. 443; Philadelphia L. Ins. Co. v. Arnold, 97 S. C. 418, 81 S. E. 964, Ann. Cas. 1916C, 706; Clement v. New York L. Ins. Co. 101 Tenn. 22, 42 L.R.A. 247, 70 Am. St. Rep. 650, 46 S. W. 561; and Patterson v. Natural Premium Mut. L. Ins. Co. 100 Wis. 118, 42 L.R.A. 253, 69 Am. St. Rep. 899, 75 N. W. 980.

That, too, is the effect of a recent holding of the Supreme Court of the United States in Mutual L. Ins. Co. v. Hurni Packing Co. 263 U. S. 167, 68 L. ed., Adv. Ops. p. 45, post, 102, 44 Sup. Ct. Rep. 90, handed down by Judge Sutherland. In that case the court said that, while the contract of insurance is with the insured, nevertheless it is for the use of the beneficiary, and that there is no reason to say that the incontestable clause is not meant for his benefit as well as the benefit of the insured. The court further said that it is for the benefit of the in