Payne v. Louisiana Indus. Life Ins. Co.

Decision Date21 January 1948
Docket Number18750.
Citation33 So.2d 444
CourtCourt of Appeal of Louisiana — District of US

Hugh M. Wilkinson, A. Miles Coe and James Wilkinson, III, all of New Orleans, for plaintiff and appellee.

E B. Charbonnet, Jr., of New Orleans, for defendant and appellant.

McBRIDE Judge.

Plaintiff Ernest Payne, the designated beneficiary in three policies of insurance on the life of Josephine Payne, brought this suit against the insurer, Louisiana Industrial Life Insurance Company, for the sum of $565, with interest, the aggregate amount of the three policies.

Each policy provides in effect that no benefits shall be payable or recoverable should the insured die as the result of a violation of the law, and that in such case the company is liable only for the amount of the premiums paid. The insurer interposed two defenses, (1) that Josephine Payne died as a result of an illegal operation, an abortion, which is a crime under the laws of this state, and that insured herself was an accessory before the fact to the crime, and (2) that insured's act causing death was of a heinous and reprehensible character, and public policy precluded defendant from insuring her against its consequences. From a judgment in plaintiff's favor, this appeal has been taken by defendant.

The matter proceeded to trial in the court below upon an agreed statement of facts, which is to the effect that the policies were issued by defendant and plaintiff is therein designated as beneficiary; that Josephine Payne died on December 31 1945, at which time all premiums had been paid on the policies; that her death resulted from acute tetanus following a criminal abortion, to which she had submitted voluntarily.

Defendant's counsel first contends that deceased was an accessory to the abortion, which is a crime, and that the provisions of the policies absolve defendant from liability.

Abortion is defined and made punishable by art. 87 of Act 43 of 1942 (La.C. Code), which reads:

'Abortion is the performance of any of the following acts, for the purpose of procuring premature delivery of the embryo or fetus:

'(1) Administration of any drug, potion, or any other substance to a pregnant female; or

'(2) Use of any instrument or any other means whatsoever on a pregnant female.

'Whoever commits the crime of abortion shall be imprisoned at hard labor for not less than one nor more than ten years.'

It is clear that it was the Legislature's intention to make the person who feloniously administers a drug or potion, or any other substance to a pregnant female, or who uses any instrument, or any other means whatsoever on a pregnant female, for the purpose of procuring a premature delivery of the embryo or foetus, guilty of the crime of abortion, but it should be noted that the language used is not broad enough to include within its scope a female who consents or submits herself to an abortion. It is true that a female who voluntarily becomes the subject of an abortion, without justifiable medical reason, is guilty of a detestible and revolting offense against the laws of nature, which is universally condemned, but notwithstanding this, such woman is not guilty of any criminal offense known to the laws of this state.

It has been said that one may be guilty of a great moral wrong, while not guilty of a crime. See Landry v. Independent Nat. Life Ins. Co., 17 La.App. 10, 135 So. 110, and Simmons v. Victory Industrial Life Ins. Co. of Louisiana, 18 La.App. 660, 139 So. 68.

This court, in the case of Simmons v. Victory Industrial Life Ins. Co. of Louisiana, supra, in which Judge Higgins was the organ, passed upon the claim of a beneficiary to recover on an insurance policy, where death resulted fram an abortion superinduced by drugs self-administered by the insured. The policy in that case exempted the insurer from liability if the insured shall 'die by his or her own criminal act.' We held that a female who inflicted abortion upon herself was not guilty of a crime under the law, as it then existed, and that the exclusion in the policy did not relieve the defendant of liability. We said:

'Having come to the conclusion that, even if the deceased had purposely brought on, by the use of drugs, the abortion which resulted in her death, she was not guilty of violating any criminal law of this state, the provision of the policy in question is inapplicable.'

Counsel insists that Simmons v. Victory Industrial Life Ins. Co. of Louisiana, supra, is readily distinguishable from the instant case in three particulars: (1) In the Simmons case there was no crime whatever, while in the case we are now considering there was a criminal abortion (a crime) performed with the knowledge and consent of the insured; (2) in the Simmons case the policy clause excepted death resulting from the insured's criminal act, while the policies under consideration now are not enforceable when death results from anyone's criminal act, whether it be that of the insured or of another; and (3) in the Simmons case the question of denying recovery for reasons of public policy was not raised or considered.

Counsel has not favored us with any authorities supporting his first two contentions, and our research fails to reveal any. The provision that no benefits shall be payable if the insured should die as a result of a violation of the law clearly contemplated, in our opinion, that the insurer would be absolved from liability only where an unlawful act perpetrated by the insured caused her death. This is the only reasonable construction that can be placed upon the language, for if we should attribute to it the construction contended for, absurd situations would ensue. For instance, if it was the intendment that the insurer would not be liable if the criminal act causing death was that of a third person, a case might arise where an innocent policy holder, without provocation, was feloniously killed by another, in which event the insurance company would be relieved of paying the policy, as it could be said the death arose from a criminal act, even though the insured played no part therein, except being the victim. A provision of a life insurance policy relieving the insurer from liability, where death results from a violation of the law, is to be given a reasonable and common sense construction, and we believe the exclusion of liability clause in question was intended to apply only in cases where death resulted from a violation of the law committed by the insured. Moreover, if there is ambiguity it should be resolved against the insurer.

Consel argues strenuously that defendant should be exonerated because the act causing insured's death was of a heinous and abhorrent character, and that public policy precluded the defendant from insuring her against its consequences, and defendant cannot be held liable on the policies. There is no ruling of any appellate court in Louisiana touching this exact point. However, in 1908 this court decided the case of Rhodes, Adm'r, v. Metropolitan Ins. Co., 6 Orleans App. 47, which is somewhat analogous. The facts were that defendant issued a policy of insurance covering the life of Charles Foley, and payable to his estate; several years afterward the insured was convicted of murder and executed. The insurance company resisted payment upon the ground that death by legal execution is not such a death as was contemplated by the parties to the contract, and that public policy forbids recovery when death ensues by reason of legal execution. The policy made no mention of death by capital punishment as being either included or excepted from the risk. In holding for defendant, the court said:

'In 1830 Lord Linderhurst, as organ of the House of Lords in the so-called Fauntleroy case, reported at 4 Bligh (N.S.) 194, says:

"It appears to me that this resolves itself into a very plain and simple consideration. Suppose that, in the policy itself, the risk had been insured against--that is, that the party insuring had agreed to pay the sum of money, year by year, upon consideration that, in the event of his committing a capital felony, and being tried, convicted and executed for that felony, his assigness shall receive a certain sum of money--is it possible that such a contract could be sustained? Is it not void upon the plainest principles of public policy?

"Would not such a contract (if available) take away one of those restraints operating on the minds of men against the commission of crime--namely, the interest we have in the welfare and prosperity of our connections? Now if a policy of that description with such a form of condition inserted in it, in express terms, cannot, on the ground of public policy be sustained, how is it to be contended that, in a policy expressed in such terms as the present, and after the events which have happened, we can sustain such a claim?

"Can we, in considering this policy, give to it the effect of that insertion which, if expressed in terms, would have rendered the policy as far as that condition went, at least, altogether void?'

'The Supreme Court of the United States, in Burt v. Ins. Co., 187 U.S. 362, 365, 23 S.Ct. 139, 47 L.Ed. 216, approves the English case, and goes on to say:

"It cannot be that one of the risks covered by a contract of insurance is the crime of the insured; there is an implied obligation on his part to do nothing to wrongfully accelerate the maturity of the policy.

"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 legally be stipulated for.'

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