dissenting. I would affirm this case. Admittedly the appellant, American Pioneer Life Insurance Company did not prove that Mr. Adams procured the credit life policy by means of a false and fraudulent representation. This was the only ground upon which appellant relied in its answer to avoid the policy.
Affirmative matters avoiding a policy must be specifically pleaded. Atlas Insurance Company v. Robison, 94 Ark. 390, 127 S.W. 456 (1910). Appellant here did not plead the provisions of subsections (b) and (c) of Ark. Stat. Ann. § 66-3208 (Repl. 1966).
Furthermore appellant by its contract had agreed that after 60 days the policy could only be canceled for fraud. The policy provided:
“The company may cancel the insurance on the life of any borrower five days after written notice has been mailed to the creditor; however, the company cannot cancel the certificate after it has been in force for a period of sixty days unless it is found to have been issued based upon fraudulent information.”
It is pointed out in 43 Am Jur. 2d Insurance § 1155 that incontestable clauses in insurance policies are favored in the law and that if they are uncertain or ambiguous they are to be construed in favor of the insured.
In Illinois Bankers’ Life Ass’n. v. Hamilton, 188 Ark. 887, 67 S.W. 2d 741 (1934), the defense to the policy was that, as an inducement to reinstate a policy, the insured had represented that the answers she had given as to the state of her health in the original application were true and also true of the date of the reinstatement and that such representations were false. That policy contained a clause which provided: “After this policy shall have been in force two full years during the lifetime of the insured, it shall be incontestable except for nonpayment of premiums.” We there held that after two years the incontestable clause waived all defenses in avoidance of the policy except the one reserved for nonpayment of premiums.
In the case before us the insurance was issued to Mr. Adams on February 17, 1971, and he did not die until April 26, 1971, a period in excess of 60 days. Therefore, I would hold the appellant to the terms of its contract that the policy could not be canceled after sixty days except for fraud. I would award an additional $1,000 attorney’s fee.
For the reasons herein stated I respectfully dissent.
Holt, J., joins.