Atlanta Life Ins. v. Cormier , 88 S.W.2d 511 ( 1932 )

I agree with appellant that under the contract upon which appellee's suit is based, she has no claim against appellant for the death of the insured, which the undisputed evidence shows resulted from a risk not insured against by the insurance policy, but expressly excepted by the policy from the obligation assumed by appellant.

I cannot agree with the trial court and my associates that this express nonliability of appellant, for the death of the insured resulting from a disease contracted before the policy was issued, is destroyed by the provisions of the policy set out in the opinion of the majority of this court which makes the policy incontestable after two years from its date except upon grounds stated in the quoted provisions, none of which are claimed by appellant to exist.

It seems clear to me that appellant's insistence that the policy does not cover the risk which resulted in the death of the insured is not a "contest" of the policy as that term is used in the incontestable provision contained in the policy and in subdivision 3 of article 4732, Revised Statutes (1925). I do not think the opinion of our Supreme Court in the case of American Nat. Insurance Company v. Tabor, 111 Tex. 155,230 S.W. 397, 398, sustains the conclusion of the majority. The able and learned justice who wrote that opinion was only discussing defenses to a policy which if not presented within two years from date of the policy would, under the terms of the statute, become barred by limitation, and not an express exception of a risk from those assumed by the policy. There is no intimation of fraud in this record, and so far as the record shows appellant may have known at the time the policy was issued that the insured had contracted the disease which finally resulted in death. The deceased knew that he had such disease, and is charged with knowledge of the fact that his policy did not cover death resulting from that disease. In this situation, the statute was not intended to prevent the parties from contracting for insurance against death from any other cause than that excepted from the policy. Certainly no sound public policy could be subserved by so restricting the right of private contract. There is no ambiguity or uncertainty in the language used in the several provisions of the policy, and no reason for the application of the rule requiring a doubtful meaning of the language of a contract to be construed against its writer. An insurance contract, like all contracts, should be construed in accordance with its plain terms. Continental Casualty Company v. Wade,101 Tex. 102, 105 S.W. 35; Brown v. Palatine Insurance Company,89 Tex. 590, 35 S.W. 1060; Howard v. Missouri State Life Insurance Company (Tex. Civ. App.) 289 S.W. 114; Green County v. Quinlan,211 U.S. 582, 29 S. Ct. 162, 53 L. Ed. 335; United States v. Ansonia Brass Co., 218 U.S. 452, 453, 31 S. Ct. 49, 54 L. Ed. 1107.

It seems obvious to me that the incontestable provision in the policy relates only to risks assumed and liabilities incurred by the issuance of the policy and cannot affect a risk not assumed by the policy. Howard v. Missouri State Life Insurance Company, supra; Wright v. Federal Life Ins. Co. (Tex.Com.App.) 248 S.W. 325; Mack v. Connecticut Insurance Company (C.C.A.) 12 F.2d 416; Hearin v. Standard Life Insurance Co. (D.C.)8 F.2d 202; National Life Insurance Company v. Jackson, 161 Ark. 597,256 S.W. 378.

In my opinion the judgment of the trial court should be reversed and judgment here rendered in favor of appellant.