(dissenting).
In his original application for insurance appellant stated he had received no medical or surgical treatment during the five preceding years, and in his application for reinstatement of the insurance he stated he had received no medical or surgical attention in the past three years except such as was known to the company. Both statements were false and unquestionably the trial court was justified in finding they were made with intent to deceive and that they materially affected the risk assumed by the company. I cannot agree that the provision of the rider, quoted in this court’s opinion, prevented the company from proving this defense.
I agree with the statement in the opinion that the rider means “that after the policy had been in effect for 24 consecutive months defendant could not question the time of commencement of illness.” As a matter of fact the insurance company also agrees for it says in its brief that the provision “would seem to us to mean that the insurer cannot question the beginning of the illness after the policy has been in effect for twenty-four consecutive months.” The insured also agrees, with some modification, because in his brief he says that by the rider “the insurer has agreed that after the policy has been in consecutive force for a period of 24 months it will not question the date of commencement of sickness.” But the insured adds that the agreement also was that the insurer would not. “attempt to prove that sickness ■ had- its inception at some time prior' to the issuance of the policy, or existed at the time of the application for the policy.” From this last he argues that proof of time of commencement of the sickness is prohibited even for the purpose of proving fraud in ’ securing the policy, and this brings us to the heart of the question.
I agree with the opinion that the provision in question is not the usual incontestable clause. I think its only incontestable effect is to prevent questioning the commencement of the sickness in determining whether the sickness is within the coverage of the policy. I do not think it means that the validity or existence of the policy itself *467canflot be contested on thé ground of fraud in securing the issuance of the policy. To so construe it would be to give it the effect of a true incontestable clause. I believe the clause leaves the insurance company free to defend on the ground of fraud and if proof of fraud incidentally discloses the time of commencement of the sickness,' I think there is no violation of the clause. The company is not questioning the time of commencement of the sickness; it is questioning the existence of a valid contract of insurance. I think the judgment should be affirmed. '