Wall v. Diamond State Life Insurance

Vaughn, J. The only real question presented by the appeal is whether the provisions of the policy contained in the “Age Limit” clause are rendered inoperative by the provisions contained in the “Time Limit on Certain Defenses” clause. To this question our answer is no. Where a policy provides that in the event of misrepresentation as to age, the contract will be adjusted so as to pay the amount actually due under the insured’s correct age. It is generally held that this provision relates not to the efficacy of the contract, but to the benefits due, and is not affected by the incontestable clause. 1 Appleman, Insurance Law and Practice, Sec. 334, p. 606; 43 Am. Jur. 2d, Insurance, § 1169; Annot., 135 A.L.R. 445. It is our opinion that the age limit clause in the policy in question should, for similar reasons, be given effect. “With this provision in the face of the policy, plaintiff’s recovery is limited to a return of the premiums paid while the insured was over the age of 65 years.” McCabe v. Casualty Co., 209 N.C. 577, 183 S.E. 743. The “Age Limit” clause in the policy is almost identical to G.S. 58-259.1 which requires the same result as to all policies to which it is applicable. [234] We have carefully considered all of the assignments of error brought forward and argued by plaintiff as to each defendant. The judgments, as to each defendant, are affirmed. Affirmed. Campbell and Britt, JJ., concur.