Southern Life & Health Ins. Co. v. Wynn

• Decision Date: 27 February 1940
• Docket Number: 6 Div. 529.
• Court: Alabama Court of Appeals
• Parties: SOUTHERN LIFE & HEALTH INS. CO. v. WYNN.

194 So. 421

29 Ala.App. 207

SOUTHERN LIFE & HEALTH INS. CO. v. WYNN.

6 Div. 529.

Court of Appeals of Alabama

February 27, 1940

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action on a policy of life insurance by Emma Wynn against the Southern Life & Health Insurance Company. From judgment for plaintiff, the defendant appeals.

Reversed and remanded.

Cabaniss & Johnston, of Birmingham, for appellant.

J. H. Dinning, of Birmingham, for appellee.

BRICKEN Presiding Judge.

The appeal in this case is from a judgment in the lower court in an action by appellee on a life insurance policy issued by appellant company. The plaintiff is the beneficiary in said policy. Under the policy the defendant company agreed, in consideration of the payment of premiums therein specified to pay to said beneficiary, upon receipt of proof of death of one Joseph Davenport, the insured, made as provided in said policy, and upon the surrender of the policy and premium receipts the sum of $180, the amount specified in said policy.

The suit was upon the policy itself which was attached to and made a part of plaintiff's complaint.

The plea of the defendant was the general issue in short by consent, with leave to present any defense available by special plea and with leave to plaintiff to present any matter available by special replication.

The trial of the cause was by the court, without a jury, both parties agreeing to waive a trial by jury.

The plaintiff introduced in evidence the policy described in the complaint, which, as stated, was issued by defendant insuring the life of the said Joseph Davenport, the nephew of the beneficiary named in said policy, and it was agreed between the parties that the said beneficiary Emma Wynn, had reared the said Joseph Davenport from infancy, and that she had taken out said policy and had paid all the premiums which had accrued thereon, and that the said Joseph Davenport, the identical person named as the insured in said policy, died on December 16, 1938, and that his death was due to suicide, and that all premiums due upon said policy up until the time of his death had been paid, and the plaintiff had made proofs of such facts to the defendant, and that the defendant had declined to pay the proceeds of the policy to the plaintiff the beneficiary named therein.

The above and foregoing constituted all the evidence and all stipulated and agreed facts introduced upon the trial of the case in the court below, and upon the submission of the case to the trial court for its judgment upon said complaint and defendant's plea thereto, and upon the agreed facts as above outlined, including the policy of insurance, the trial court entered a judgment in favor of the plaintiff for $184.71, to which judgment, the defendant, in open court, then and there duly and legally excepted.

The appellee contends that her admission that Joseph Davenport, the insured, died as a result of suicide, without more, did not bar her right to a recovery under the policy of insurance sued upon, and her contention is, that the burden was on the defendant to prove that the deceased committed suicide, with suicidal intent, and that the felonious intent must be proved by a fair preponderance of the evidence.

It is to be noted, according to the agreed statement of facts, upon which the said cause was submitted for the judgment of the lower court, that Joseph Davenport, the insured named in said policy, died on December 16, 1938, and that his death "was due to suicide."

In the case of Supreme Commandery of the Knights of the Golden Rule v. Ainsworth, 71 Ala. 436, 46 Am.Rep. 332, suicide is defined as "voluntary, criminal self-destruction."

In the case of McMahan v. State, 168 Ala. 70, 53 So. 89, 91, it is said that at common law suicide was a felony, and in support thereof, the following excerpt from 1 Hale's Pleas of the Crown, p. 411, was quoted by our Supreme Court with approval: "Felo de se, or suicide, is where a man of the age of discretion (14 years at common law) and compos mentis voluntarily kills himself by stabbing, poison, or any other way. * * * If he lose his memory by sickness, infirmity, or accident, and kills himself, he is not felo de se; neither can he be said to commit murder upon himself or any other."

It appears from an examination of the photostatic copy of the policy of insurance sued upon, which photostatic copy is incorporated in and made a part of the bill of exceptions set out in the record before this court on this appeal, that said policy is silent as to whether suicide is a risk covered therein. And it further appears that there is no incontestable clause in said policy of insurance.

The appellee contends that the Ainsworth case, supra, is not decisive of the proposition that her admission that the insured's death was due to suicide prohibits the collection by her of liability under said policy, and cites the case of Mutual Life Insurance Company of New York v. Lovejoy, 201 Ala. 337, 78 So. 299, 302, L.R.A.1918D, 860, as limiting, modifying or controlling the pronouncement in the Ainsworth case to the effect, "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."

In the case of Mutual Life Insurance Company of New York v. Lovejoy, supra, a policy of life insurance was the basis of the action there involved and that policy contained the following clause: "This policy shall be incontestable, except for nonpayment of premiums, provided two years shall have elapsed from its date of issue." Upon the original submission of that case our Supreme Court held that suicide not being a risk insured against as pronounced in the Ainsworth case, the incontestable clause contained in said policy could not be used in an effort to enforce the collection of the amount alleged to be due under said policy, and with respect to this pronouncement our Supreme Court said, upon the original submission:

"The case of Pauline Weil v. Travelers' Ins. Co. , 78 So. 528 (present term), a review by certiorari of the decision of the Court of Appeals, is an authority for the view that the incontestable clause in the policy here considered is no answer to a defense based upon the voluntary, intentional deprivation of self-existence by the assured while in his sound mind. This is, in our opinion, but the logical result of the decision of this court in the Ainsworth Case, supra, and we cite it with approval; also the decision of the North Carolina Supreme Court in Scarborough v. American National Ins. Co., 171 N.C. 353, 88 S.E. 482, Ann.Cas.1917D, 1181 [L.R.A.1918A, 896], where the Ainsworth Case is quoted.

"In the Ainsworth Case it is pointed out that an express agreement to pay the insurance money to the assured, in the event he committed suicide, would be repudiated by the court as offensive to law and good morals, and thus the public policy of this state was clearly and unmistakably declared as far back as 1882, and has not been questioned since that time either by the courts or the Legislature."

Upon application for rehearing our Supreme Court, speaking with reference to the incontestable clause contained in the policy of insurance in the Lovejoy case, said:

"We fail to see why such a clause or provision is not valid, or why the courts should not enforce it. We cannot presume, in the absence of proof, that either party to the contract intended to violate the law, or to make a contract against public policy. If parties to an insurance contract or any other contract should attempt to incorporate a provision in violation of a statute or against public policy, the attempt would fail; the contract would be void and would not be enforced by the courts. The contract of insurance here sued upon, on its face shows no such attempt on the part of either party. The incontestable clause in question was not, so far as we are informed, intended by the parties or either of them to be given such effect. No court so far as we are advised, has construed such clause. Certain it is that this court has never construed such a clause. No such clause was involved in the Ainsworth Case, 71 Ala. 436, 46 Am.Rep. 332, and hence that decision cannot be held to be an authority against the...