fied in the contract. In the instant case the policy is joint, insuring the lives of the plaintiff and the deceased. The contract was directly with the plaintiff as much as with the deceased. The reasons for holding that the incontestable clause operates in favor of the beneficiary after the death of the insured apply with even greater force where the plaintiff is not merely a beneficiary, but a contracting party as well.
In the case of Ramsay v. Old Colony Life Insurance Co., 131 N. E. 108, decided April 21, 1921, the Illinois Supreme Court adhered to its decision in Monahan v. Metropolitan Life Insurance Co., supra, and held that the defendant, when sued upon the policy by the administrator of the insured, could not interpose the defense of fraud in procuring the contract if it did not act within the time stipulated in the policy, although the insured died within that time. In my opinion, under such an incontestable clause as the one in question, any defense to liability on the contract which arises out of the transactions leading up to the policy must he asserted within the time prescribed.
While it is urged in this court that the plaintiff should not on appeal have the benefit of the incontestable clause, inasmuch as the matter was not suggested in the court below, it would seem that no useful purpose would be served by a reversal where, on the record as a whole, it clearly appears that the plaintiff is entitled to a judgment. Occasionally new grounds may be resorted to in an appellate court for sustaining a judgment where they would not be heeded if relied upon for reversal. See 3 C. J. 738.
ANDREW WEBER, as guardian of the estate of Fred Bodman, Estelle
Bodman, Esther Bodman, Maxine Bodman, and Myron Bodman,
Minors, Respondent, v. INTERSTATE BUSINESS MEN’S AC-
CIDENT ASSOCIATION, a corporation, of Des Moines, Iowa,
Appellant.
(184 N. W. 97.)
Insurance—by-law as defense must be pleaded and proved.
The defendant, an Accident Insurance Company, relied on a cer-
