Gordon v. Unity Life Ins. Co. , 215 La. 25 ( 1949 )

While I concur in the decree affirming the judgment of the court of appeal in the present case, I do not see why the court should leave a doubt now about the correctness of the decision which was rendered in the case of Bernier v. Pacific Mutual Life Insurance Company of California,173 La. 1078, 139 So. 629, 630, 88 A.L.R. 765. The reason why we held in the Bernier case that the beneficiary was entitled to full recovery on the life insurance policy was that the clause making the policy incontestable after one year, declared that it should be incontestable except for either of two causes, namely, (1) nonpayment of premium or (2) violation of the conditions of the policy relating to military or naval service in time of war, but did not except from the incontestability clause violation of the provisions relating to aerial navigation. The insured was killed by the falling of an airplane in which he was riding, more than a year after the policy had been in force. The company pleaded that the riding in the airplane otherwise than as a fare-paying passenger in a licensed commercial air craft, etc., was violative of the clause in the policy relating to aerial navigation, and hence that the risk was not covered by the policy. We held merely that there was no such exception "as to coverage" in the incontestability clause, which excepted only "non-payment of premium or for violation of the conditions of the Policy relating to military or naval service in time of war". Hence we applied the maxim inclusio unius est exclusio alterius. I quote from 173 La. 1092, 139 So. 629, 633, near the end of our opinion, thus: "In the case before us, considering that the incontestability clause makes but one exception, of a cause or circumstance of death for which the policy should remain contestable after one year, the natural and plausible inference is that the policy became incontestable for any other cause or circumstance of death at the end of the year. Inclusio unius est exclusio alterius. Vice versa, the exclusion from the effect of the incontestability clause of only the one cause or circumstance of death, death while engaged in military or naval service or within six months thereafter but during the period of the war, was the inclusion of death ``from engaging in aerial navigation' under any or all conditions."

I quote also from pages 1083-1084 of 173 La., pages 630-631 of 139 So., from the decision in the Bernier case, as follows: "The conditions relating to military or naval service in time of war, stated substantially, were that if within five years from the date of the policy the insured should engage in military or naval service in time of war the liability of the company, in the event of the death of the insured while so engaged, or as a result thereof within six months thereafter but within the period of the war, would be limited to any outstanding dividend additions, etc. These conditions, relating to military or naval service in time of war, constituted a limitation of the so-called coverage or risk assumed, as plainly as did the conditions on which alone the insured could engage in aerial navigation, without affecting the obligation of the insurer, constitute a limitation of the coverage or risk assumed by the insurer; and yet it was deemed necessary to except the conditions relating to military or naval service in time of war from the provision making the policy incontestable after one year, in order that the obligation of the insurer to pay the amount stated on the face of the policy might remain contestable after the expiration of the year, on the ground of violation of the conditions relating to military or naval service in time of war. Our opinion therefore is that, inasmuch as only the one exception was made in the provision making the policy incontestable after having been in force for a year, the intention, at least of the insured, was that there should be no other exception. If the insurance company intended to except also, from the incontestability clause, a violation of the conditions relating to aerial navigation, that exception, like the exception of violation of the conditions relating to military or naval service in time of war, should have been expressed. Article 1958 of the Civil Code declares that, if any doubt or ambiguity in a contract has arisen from the want of some necessary explanation which one of the parties to the contract ought to have given, the construction favorable to the other party shall prevail. The rule is universally recognized, particularly with regard to insurance policies, that any ambiguity in a contract made on a form prepared by one of the parties to the contract ought to be construed against him."

It is plain therefore that the doctrine of the decision in Bernier v. Pacific Mutual Life Insurance Company of California is not at all appropriate to the insurance policy on which the present suit was brought. Hence, as I say, there is no reason why the court in its opinion rendered in the present case should leave a doubt about the soundness of the decision rendered in Bernier v. Pacific Mutual Life Insurance Company of California.

It is my opinion also that the decision which this court rendered in the case of Garrell v. Good Citizens Mut. Ben. Ass'n, 204 La. 871, 16 So.2d 463, can be reconciled with the decision which the court is rendering in the present case. In fact it is so reconciled, to my satisfaction, in the opinion written by the late Judge Westerfield, for the court of appeal, in the instant case, reported in 30 So.2d 880.