Payne v. Louisiana Indus. Life Ins. Co.
Decision Date | 21 January 1948 |
Docket Number | 18750. |
Citation | 33 So.2d 444 |
Court | Court of Appeal of Louisiana — District of US |
Parties | PAYNE v. LOUISIANA INDUUSTRIAL LIFE INS. CO. |
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.
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:
'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:
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