APPELLANT'S MOTION FOR REHEARING OR TO MODIFY. In its motion for a "rehearing or to modify" defendant-appellant argues that if the opinion proper in this case is permitted to stand as written it will have the effect of amending section 5893, Revised Statutes Missouri 1939 (Mo. R.S.A., sec. 5893); that it means that a policy can be held void for misrepresentation only within one year after date of issuance, and not thereafter. It is sufficient to say in answer to this contention that the Legislature itself, by enacting section 5882, Revised Statutes 1939 (Mo. R.S.A., sec. 5882), limited the effect of section 5893. Said section 5893 deals with "misrepresentations" in the obtaining of a policy of insurance Section 5882 restricts to the period of one year after the issuance of a policy the time within which the defense of misrepresentations in obtaining the policy is permissible. *Page 1135
Defendant further argues in its said motion that if the construction which we have given to section 5882, supra, is to stand, then after a policy has been in force one whole year it will not be contestable by an insurance company even though fraud entered into the procurement of the policy. We believe that is exactly what the Legislature intended by section 5882, supra. It means that an insurance company issuing policies on the stipulated premium plan (under Article 4 of Chapter 37, Revised Statutes Missouri 1939 (Mo. R.S.A., Article 4 of Chapter 37), is given one whole year after a policy is issued to investigate and determine whether or not the policy was procured by misrepresentations or fraud, and that after such a policy has been in force one full year such a defense is not permissible.
Defendant asserts that since the phrase "any cause," which appears in Section 5882, supra, cannot be construed to include nonpayment of premiums, it must necessarily follow that said phrase "any cause" cannot be construed to include fraud. We are unable to agree with defendant's contention. It must be remembered that nonpayment of premiums as a defense is not involved in this case at all. Defendant conceded that all premiums were paid. Furthermore, defendant is in error in assuming that the defense of nonpayment of premiums is in the same category as the defense of misrepresentation or fraud in the procurement of the policy. The defense of nonpayment of premiums is based upon the theory that a valid policy was issued but that the insurance provided for therein has been forfeited by nonpayment of premiums. Whereas, the defense of fraud or misrepresentation in the procurement of the policy goes to the very inception of the policy and is based on the theory that no valid policy ever existed because of fraud in the procurement thereof.
The defense of forfeiture for nonpayment of premiums is in no manner affected by Section 5882, supra. That section, it will be noted, provides only that the "policy" after being in force for one full year shall be incontestable. Said section places no limitation whatever on the defense of nonpayment of premiums. Nevertheless, the Legislature clearly intended that any defense challenging the validity of the policy itself should not be permitted after the policy has been in force one full year.
The motion for rehearing or to modify is overruled. Hughes,P.J., and Anderson, J., concur. *Page 1136