Supreme Lodge of Knights of Pythias v. Overton

• Decision Date: 17 April 1919
• Docket Number: 8 Div. 146
• Citation: 82 So. 443,203 Ala. 193
• Parties: SUPREME LODGE OF KNIGHTS OF PYTHIAS v. OVERTON.
• Court: Alabama Supreme Court

82 So. 443

203 Ala. 193

SUPREME LODGE OF KNIGHTS OF PYTHIAS v. OVERTON.

8 Div. 146

Supreme Court of Alabama

April 17, 1919

Rehearing Denied May 22, 1919

Appeal from Circuit Court, Madison County; Robert C. Brickell Judge.

Action by Sallie N. Overton against the Supreme Lodge of the Knights of Pythias. From judgment for plaintiff, defendant appeals. Affirmed.

R.E Smith, of Huntsville, for appellant.

Cooper & Cooper, of Huntsville, for appellee.

MAYFIELD J.

The only question presented for review on this appeal is whether or not the insurer should be allowed to defend an action on an insurance policy which contains an "incontestable clause" by setting up as special defenses that the insured was a felon sentenced to death, and was killed while attempting to escape imprisonment and execution.

This decision must be ruled by the recent decisions of this court in the cases of Ex parte Weil, 78 So. 528, and Mutual Ins. Co. v. Lovejoy, 78 So. 299, L.R.A. 1918D, 860.

In one of the above-cited cases the defense of suicide by the insured was held not to be availing, and in the other, where the insured was publicly executed by hanging, was likewise not availing as a defense to an action on life insurance policies which contained the usual incontestable clause.

The defense that the insured was killed as an escaping felon under death sentence, is likewise unavailing as a defense against an insurance contract containing an incontestable clause.

We do not decide, as said in Weil's Case, that a contract to insure against such risks would not be against public policy and therefore void; but we do decide that an incontestable clause in life insurance policies is valid and binding and not against public policy, and that, nothing appearing to render such clauses void, they will be enforced by the courts; and they cannot be enforced if such defenses as above stated may be set up to defeat the policy. Such defenses, as well as any other, would absolutely defeat the cause in question, and render the policy no better than if it contained no such clause.

The contract sued on in this case and in the two cases cited above were not on their faces void. No one of them on its face was against public policy or good morals, but perfectly valid and binding as any other contract of insurance. The attempted defense in each case was to show that the death or cause of death was to show that the death or cause of...