Mutual Life Ins. Co. of New York v. Lovejoy , 201 Ala. 337 ( 1917 )

In the case of Supreme Commandery Knights Golden Rule v. Ainsworth, 71 Ala. 436, 46 Am. Rep. 332, this court, speaking through Chief Justice Brickell, pointed out that an express agreement to pay the insurance money to the insured in the event of death by his own voluntary act, while of sound mind, would be repudiated by the court as offensive to law and good morals. As I take it, the public policy of this state was clearly and unmistakably declared in the Ainsworth Case as far back as 1882, and has remained unquestioned since that time either by the courts or the Legislature.

The Supreme Court of the United States holds to the same view in regard to the question of public policy. Ritter v. Mutual Life Ins. Co., 169 U.S. 139, 18 Sup. Ct. 300, 42 L.Ed. 693; Northwestern Life Ins. Co. v. McCue, 223 U.S. 234,32 Sup. Ct. 220, 56 L.Ed. 419, 38 L.R.A. (N.S.) 57. In the Ritter Case, supra, the court said:

"A contract, the tendency of which is to endanger the public interests or injuriously affect the public good, or which is subversive of sound morality, ought never to receive the sanction of a court of justice or be made the foundation of its judgment. If, therefore, a policy, taken out by the person whose life is insured, and in which the sum named is made payable to himself, his executors, administrators, or assigns, expressly provided for the payment of the sum stipulated when or if the assured, in sound mind, took his own life, the contract, even if not prohibited by statute, would be held to be against public policy, in that it tempted or encouraged the assured to commit suicide in order to make provision for those dependent upon him, or to whom he was indebted."

Continuing the discussion of this question, reference was made to the opinion of this court in the Ainsworth Case, and it is clearly demonstrated in the opinion that both courts had declared a like public policy. Not only is the Ainsworth Case cited, but the following extensive quotation is taken from that case:

"The subject was considered by the Supreme Court of Alabama in Supreme Commandery, etc., v. Ainsworth, 71 Ala. 436, 446 [46 Am. Rep. 332]. Chief Justice Brickell, delivering the unanimous judgment of that court, said: 'In all contracts of insurance, there is an implied understanding or agreement that the risks insured against are such as the thing insured, whether it is property, health, or life, is usually subject to, and the assured cannot voluntarily and intentionally vary them. Upon principles of public policy and morals, the fraud, or the criminal misconduct of the assured is, in contracts of marine or of fire insurance, an implied exception to the liability of the insurer. * * * Death, the risk of life insurance, the event upon which the insurance money is payable, is certain of occurrence; the uncertainty of the time of its occurrence is the material element and consideration of the contract. It cannot be in the contemplation of the parties that the assured, by his own criminal act, shall deprive the contract of its material element, shall vary or enlarge the risk, and hasten the day of payment of the insurance money. The doctrine asserted in Fauntleroy's Case, that death by the hands of public justice, the punishment for the commission of crime, avoids a contract of life insurance, though it is not so expressed in the contract, has not, so far as we have examined, been questioned, though the case itself may have led to the very general introduction of the exception into policies. The same considerations and reasoning which support the doctrine seem to lead, of necessity, to the conclusion that voluntary, criminal self-destruction, suicide, as defined at common law, should be implied as an exception to the liability of the insurer, or, rather, as not within the risks contemplated by the parties, reluctant as the courts may be to introduce by construction or implication exceptions into such contracts, which usually contain special exceptions.' Again: 'The fair and just interpretation of a contract of life insurance, made with the assured, is that the risk is of death proceeding from other causes than the voluntary act of the assured, producing or intended to produce it;' and that 'the extinction of life by disease, or by accident, not suicide, voluntary and intentional, by the assured, while in his senses, is the risk intended; and it is not intended that, without hazard of loss, the assured may safely commit crime.' "

The Ritter Case was subsequently reaffirmed in Northwestern Life Ins. Co. v. McCue, the court concluding the discussion of this question by the use of the following language:

"These cases must be accepted as expressing the views of this court as to the public policy which must determine the validity of insurance policies, and which they cannot transcend even by explicit declaration, much less be held to transcend by omissions or implications."

In the case of Scarborough v. American National Ins. Co.,171 N.C. 353, 88 S.E. 482, Ann. Cas. 1917D, 1181, special reference is made to the Ainsworth Case, and quotation taken therefrom.

A review of these cases, therefore, disclose that the Ainsworth Case has been accepted by the courts of other jurisdictions, as declaring the public policy of this state, which, in my opinion, is sound and based upon good morals and should not now be in effect repudiated. These authorities are based upon the proposition that it would be against public policy and good morals for parties to contract for the payment of an insurance policy when the insured came to his death by his own voluntary act, when of sound mind. The Ainsworth Case as well as the Ritter Case expressly declare that such a clause of insurance would be absolutely void as against public policy. As said by this court in the Ainsworth Case:

"An express contract to pay the insurance money to the insured, in the event he committed suicide, an increased premium being paid because of the risk, there could be but little, if any, hesitancy in repudiating as offensive to law and good morals."

Again, in Burt v. Union Central Life Ins. Co., 187 U.S. 362,23 Sup. Ct. 139, 47 L.Ed. 216, the court said:

"Public policy forbids the insertion in a contract of a condition which would tend to induce crime, and as it forbids the introduction of such a stipulation, it also forbids the enforcement of a contract under circumstances which cannot be lawfully stipulated for."

The majority opinion of the court, written in response to the application for rehearing, does not take issue with this proposition. Indeed, it is manifestly sound, but the opinion proceeds upon the idea that by the incontestable clause the company has agreed not to interpose this defense. As reviewed in the Ainsworth Case, and the other authorities above cited, this clause could have no effect where the insured came to his death by his own voluntary act, while of sound mind, for the simple reason, as pointed out by these authorities, that such a contingency was not within the contract of insurance, and formed no part thereof, and such stipulation would have been absolutely void had it been in plain language written in the policy itself.

To hold that the incontestable clause embraces this defense is, in my humble judgment, to permit that to be done indirectly which under our own decisions, based upon sound public policy and good morals, could not be done directly. Based upon any line of reasoning, it results after all that the solemn judgment of a court is rested upon a foundation of crime, as said by the Supreme Court of the United States in the Ritter Case, supra:

"A contract, the tendency of which is to endanger the public interests or injuriously affect the public good, or which is subversive of sound morality, ought never to receive the sanction of a court of justice or be made the foundation of its judgment."

I forego further discussion of the question, however, but respectfully dissent from the holding of the majority of the court in this cause.

ANDERSON, C. J., and SOMERVILLE, J., concur.