While I heartily support the result in this case, I encounter difficulty in perceiving a substantial difference between the provisions of the instant policy and those of the policy considered in Garrell v. Good Citizens Mut. Ben. Ass'n,204 La. 871, 16 So.2d 463, 464.
In the Garrell case, the insured died of tuberculosis and the policy contained a provision declaring that only one-fourth of the maximum insurance would be paid if the assured died from certain specified diseases (i. e. tuberculosis) contracted within twelve months from the date of the policy. The plaintiff nevertheless insisted upon recovering *Page 38 the face amount of $113 by reason of the incontestibility clause, which provided: "This policy shall be incontestible after two years from date except as stated in conditions and for nonpayment of Premiums." (Emphasis mine.)
After rejection of her claim by the Court of Appeal, plaintiff secured a writ of review and this court permitted a full recovery on the ground that "From our appreciation of the case of Bernier v. Pacific Mutual Life Ins. Co. of California,173 La. 1078, 139 So. 629, 632, 88 A.L.R. 765, the holding is to the effect that a defense is barred when the policy becomes incontestible, except where it is preserved in theincontestibility clause, irrespective of whether it is based ona denial of coverage or a plea of breach of the conditions of the policy. In other words, all defenses not specially exceptedin the clause making the policy incontestible are barred when the period of time fixed in the incontestibility clause has elapsed." (Emphasis mine.)
It takes no more than a casual reading of the Bernier decision to exhibit the error in the above quoted reasoning — for the court did not hold in the Bernier case that all exceptions relative to forfeiture or coverage were required to be stated in the incontestibility clause. The resolution of the court was that an exclusion from coverage, while the assured was engaged in aerial navigation (not as a fare paying passenger on commercial aircraft), could not be availed of as a defense after the policy *Page 39 had been in force for one year, in view of another clause making the policy incontestible "except for non-payment of premium or for violation of the conditions of the Policy relating to military or naval service in time of war." The court said that the condition relating to military and naval service, referred to in the incontestibility clause, was one affecting coverage and that, since it was the only condition contained in the clause, the maxim "inclusio unius est exclusio alterius" would be applied. In other words, it was decided that, where the incontestibility clause contained but one exception relating to coverage, the policy would be rendered ambiguous and inconsistent if the condition relating to death resulting from air travel be considered applicable after the policy had been in effect for over one year.
The holding in the Bernier case does not, in my opinion, provide any basis for the decision in the Garrell case. The clause considered in the Garrell case provided for incontestibility after two years "except as stated in conditions". Surely, there could be no conflict between this provision and the other conditions of the policy to which the exception referred.
So, in the case at bar, there can be no conflict or ambiguity (as the majority opinion clearly states) where the incontestibility clause refers specifically to the conditions relating to "death resulting from disease as herein limited". But to say that there is a difference between this and the Garrell case is to overlook the reality of the situation. *Page 40 Indeed, the court has passed an opportunity to correct its erroneous conclusion in the Garrell case and supplant it with the logic and well-grounded reasoning set forth in the case at bar.
I respectfully concur in the decree.