Davis v. Unity Life Ins. Co.

• Decision Date: 28 November 1949
• Docket Number: No. 18759,18759
• Citation: 43 So.2d 67
• Parties: DAVIS v. UNITY LIFE INS. CO., Inc.
• Court: Court of Appeal of Louisiana — District of US

Page 67

43 So.2d 67

DAVIS v. UNITY LIFE INS. CO., Inc.

No. 18759.

Court of Appeal of Louisiana Orleans.

Nov. 28, 1949.

E. B. Charbonnet, Jr., New Orleans, for plaintiff and appellee.

Normann & Jones, New Orleans, for defendant and appellant.

McBRIDE, Judge.

Plaintiff, Henderson Davis, who shot and killed his wife, Della Davis, brought this suit against defendant insurance company, claiming that he, as the designated beneficiary, is entitled to recover the sum of $240, the proceeds of a policy of life insurance dated December 29, 1941, issued by defendant, insuring the life of Della Davis.

The Civil District Court rendered judgment for plaintiff in accordance with his prayer. Defendant has appealed.

The insurer defends upon the ground that the deceased died as the result of a gunshot wound intentionally inflicted by the plaintiff, and that it would be against the public policy of the State to allow plaintiff to recover the insurance proceeds, and further that the death, having resulted from the intentional act of a person other than the insured, is specifically excluded from the risk. The answer alleges that plaintiff intentionally shot and killed Della Davis.

Upon the trial of the case below, defendant called two officers of the New Orleans Police Department as witnesses, who testified that on the night of September 18, 1946, Henderson Davis surrendered himself at their station, telling them that he had shot his wife with a forty-five calibre pistol, which he turned over to the officers. The officers proceeded with Davis to his home, 541 Vallette Street, where the shooting had occurred, and there they found the body of Della Davis in the second room with a gunshot wound in the head. Davis told the officers that after an argument his wife threw a lamp at him and he shot her.

Henderson Davis was called by defendant's counsel for cross-examination under Act No. 115 of 1934. His statements are to the effect that at 8:30 that night Della Davis left 1201 Orleans Street, where she and Davis operated a place of business, to go home; that when Davis reached home at about 10:30 o'clock, he was surprised in not finding his wife there. He waited for her in the front room; she arrived at 11:30, took off her shoes at the door, and attempted to sneak into the house. When asked where she had been, she told Davis that that was none of his business. After ordering her to leave the house, and removing her clothing from a chifforobe and placing them upon a table, Davis went to where their money was kept, and at this point Della Davis grabbed the lighted kerosene lamp and raised it at him. Davis stated that he was 'scared' of the lamp and picked up the pistol, which was lying where the money was, and waved it to frighten her, and that the pistol went off accidentally and Della fell. Davis was asked: 'You were cool and calculated at the time?' and he answered: 'Very much so.'

Plaintiff's counsel then interposed an objection 'to this type of testimony.' The trial judge, in sustaining the objection, ruled: 'The Court: Sustained, for this reason; when you put a witness under the Act, you are confined to the allegations of the petition. You can't pull him out there to make out your case. If you want to do that you have to tender him as your own witness. I sustain the objection to that line of questioning.'

This ruling terminated the cross-examination of Davis. No evidence, save his testimony and that of the police officers, is to be found in the record.

The policy clauses relied upon by defendant, so far as pertinent here, are to be found in paragraph 4 of the 'Conditions' on the reverse side of the policy, and read:

'4. Incontestability.--This Policy shall be incontestable after one year from date of issue except for non-payment of premiums and except for misstatement of age of the Insured, and except for the following provisions of this paragraph; Benefits will not be paid at any time for death resulting from any disease contracted or injuries sustained before the date of this Policy nor at any time for death resulting from violation of law, immorality, alcoholism, venereal diseases or from an intentional act of any person other than the Insured. * * *'

Defendant's attorney contends that plaintiff's testimony demonstrates that the act of Della Davis in raising the lamp to strike plaintiff constituted an assault, an offense punishable by the criminal laws of the state, and that her death, which resulted from such violation of the law, is excluded from policy coverage.

We notice, however, that defendand failed to allege a special plea setting forth that the deceased died as the result of any violation of the law, nor were any facts alleged from which it can be reasonably inferred that defendant raised or intended to rely upon such defense; consequently we cannot pass thereon. An insurer, to be heard on a denial of liability for loss caused in a certain manner, which would have otherwise fallen within the general terms of the policy, must allege the applicable provision of the policy and also the facts relied upon to bring itself within such policy provisions. 46 C.J.S., Insurance, § 1297, p. 356; Cahn & Wachenheim v. Fidelity & Casualty Co., 157 La. 238, 102 So. 320; Coleman v. Universal Life Ins. Co. of Memphis, Tenn., La.App., 157 So. 411.

We are much concerned with the defense that Della Davis's death resulted from the intentional act of a person other than herself, which risk is specially excepted from coverage in paragraph 4 above quoted.

A provision in a policy, providing that coverage will not extend to injuries or death resulting from the intentional act of the insured or any other person, is valid and binding, and, hence, no recovery can be had for injuries or death so inflicted. 45 C.J.S., Insurance, § 772, p. 800; Monroe v. First National Life Ins. Co., 19 La.App. 700, 141 So. 471.

Plaintiff's counsel argues that the clause can avail the insurer nothing. His position is that the policy is misleading and deceptive, because on its face reference is made to 'the Provisions and Benefits printed or written on the reverse side,' while on the reverse there appears the heading in boldface type 'Conditions,' under which is found twelve numbered paragraphs each with a subheading. This, argues counsel, is sufficient to confuse an unwary policyholder, because a reasonably prudent person would expect to find on the reverse side 'provisions and benefits,' and not 'conditions,' some of which limit the insurer's liability in certain cases and exclude liability in other cases.

We cannot agree with counsel that the policy is misleading or deceptive. It is stated on the face that 'the Provisions and Benefits printed or written on the reverse side are a part of this Policy as fully as if recited over the signatures hereto affixed.' It seems to us that this is sufficient to apprise a policyholder that his entire contract with the insurance company was composed not only of the general insuring clauses on the face of the policy, but that there was something printed or written on the reverse side which was as well a part of the contract. There is no valid reason why the stipulations printed on the reverse side, merely because they appear as 'Conditions' and not 'Provisions and Benefits,' should be disregarded. This is not one of those cases wherein the clause was printed in small type and intermingled with various conditions and warranties on the reverse side of the policy. All provisions listed under the 'Conditions' are in type of the same size.

Plaintiff's counsel makes the further contention that no effect is to be accorded the clause, because it appears in the paragraph containing the subheading 'Incontestability.' His argument is that incontestability provisions are inserted in policies for the purpose of vouchsafing to the insured that after a stated period during the lifetime fo the insured most of the defenses which might otherwise be available to the insurer will be cut off. He complains that in the policy under consideration the insurance company has used the...