United Order of the Golden Cross v. Overton

• Decision Date: 26 June 1919
• Docket Number: 8 Div. 192
• Citation: 203 Ala. 335,83 So. 59
• Parties: UNITED ORDER OF THE GOLDEN CROSS v. OVERTON.
• Court: Alabama Supreme Court

83 So. 59

203 Ala. 335

UNITED ORDER OF THE GOLDEN CROSS v. OVERTON.

8 Div. 192

Supreme Court of Alabama

June 26, 1919

Rehearing Denied Oct. 23, 1919

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

Action by Sallie N. Overton against the United Order of the Golden Cross. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

W.H Powers, of Boston, Mass., and A.A. Williams, of Florence, for appellant.

R.E Smith, of Huntsville, for appellee.

SAYRE J.

Action on a policy of life insurance. Special pleas allege in substance that the insured was indicted, tried, convicted and sentenced to hang for the crime of murder, that pending an appeal he escaped from jail, and that, when officers of the law undertook to arrest him, he committed a felonious assault upon them with a deadly weapon, whereupon the said officers killed him in self-defense. The proposition of this appeal is that the death of the insured under the circumstances alleged was not a risk covered by the policy, that when the insured violated the criminal law, and in so doing met his death, he violated and avoided his contract of insurance. The authorities support the proposition of the pleas. Supreme Commandery v. Ainsworth, 71 Ala. 436, 46 Am.Rep. 332; Burt v. Union Central Life Insurance Co., 187 U.S. 362, 23 Sup.Ct. 139, 47 L.Ed. 216; Ritter v. Mutual Life Insurance Co., 169 U.S. 139, 18 Sup.Ct. 300, 42 L.Ed. 693. It follows that the trial court committed error in sustaining the demurrers to the pleas under consideration.

The demurrers took the point, in effect, that the pleas failed to allege that the risk of the death of the insured under the circumstances shown was by the policy excepted from the rule of the cases, supra. We have held that a stipulation in a policy of life insurance to this effect, "This policy shall be incontestable except for nonpayment of premiums provided two years shall have elapsed from its date of issue," is a valid stipulation, and will be enforced in an action on the policy; that such a clause constitutes, not an assurance against the results of crime, but an assurance against the hazard of litigation. Mutual Life Insurance Co. v. Lovejoy, 78 So. 299, L.R.A.1918D, 860; Supreme Lodge, Knights of Pythias, v. Overton, 82 So. 443. But the pleading in the present case did not invoke the rule of those cases. Neither the complaint nor the pleas brought the terms of the...