On this application for a rehearing the majority, consisting of McCLELLAN, SAYRE, and THOMAS, JJ., and the writer, have reached the conclusion that we were in error on the original hearing, in so far as we held that the "incontestable clause" in the insurance contract or policy sued on did not estop or preclude the defendant insurance company from setting up, as a defense to this action on the policy, that the insured committed suicide or took his own life while sane. This clause reads as follows:
"This policy shall be incontestable, except for nonpayment of premiums, provided two years shall have elapsed from its date of issue."
The two years from its date had elapsed before the death of the insured, and at that date all premiums had been paid; and hence, by the very terms of the contract of insurance, the policy was incontestable. To allow the insurance company to set up this defense, in order to defeat the action, would be to ignore this clause of the contract, or to make and enforce a new contract for the parties.
Without either affirming or denying that suicide while sane is a crime, or that it is not within the risk of a life insurance policy unless expressly so provided, or that, if so provided, the provision would be void as against public policy, we hold that the object and effect of the incontestable clause is to prevent any such questions from arising, or being set up by the insurer as a defense to an action on the contract, after the death of the insured. 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 present holding. Nor was any such clause involved in the case of Ritter v. Mutual Insurance Co., 169 U.S. 139,18 Sup. Ct. 300, 42 L.Ed. 693. The legal principle involved and decided in these two cases, and since recognized and followed, is well stated in the former (our own) case, by Brickell, C. J., as follows:
"Death, the risk of life insurance, the event upon which the insurance money is payable, is certain of occurrence; the uncertainty of the time of its occurrence is the material element and consideration of the contract. It cannot be in the contemplation of the parties that the assured by his own criminal act, shall deprive the contract of its material element; shall vary and enlarge the risk, and hasten the day of payment of the insurance money." 71 Ala. 436, 447, 46 Am. Rep. 332.
The concrete question decided in the Ainsworth Case, as stated by Freeman, in his headnote of the case, was as follows:
"Under a contract of life insurance issued by a mutual company, conditioned to be subject to any by-laws thereafter to be enacted, the insured is bound by a subsequent by-law forfeiting such policies when the insured should die by his own hand, sane or insane." 71 Ala. 436, 46 Am. Rep. 332.
These cases, therefore, are not decisions contrary to our present holding on the rehearing. There was no incontestable clause in the contracts there under consideration, and hence there could have been no decision of the question, whatever may have been the dicta.
These incontestable clauses are material and valuable provisions in contracts of life insurance. They are stressed by insurance companies as being valuable to the insured or to the beneficiary, because affording the assurance that if the insured lives up to his contract the company will not, upon his death, contest the payment of the amount agreed to be paid, though without such provision the company would have a good defense. It would not do to treat such clauses as mere glittering generalities, inserted in the contract by the insured to induce persons to insure in the company offering same, rather than in a company not so in advance agreeing to waive all defenses, except those specified, and then allow the insurer to defend, as if it had not, for a consideration, agreed to waive its right to defend. Unquestionably, the insurance company can waive any defense after death; and we see no reason why it cannot, as a part of the contract, waive before death the right to defend. Of course if it is made to appear that the making or procuring of such a stipulation was a mere attempt to avoid or evade the law, or a scheme on the part of *Page 341 the insured to induce the company to insure his life against suicide while sane, intending, at the time, to take his own life while sane, then the defense might be availing notwithstanding the incontestable clause which was thus procured by fraud. In such case there would not in law be a binding contract, because of the inherent intent to violate or evade the law, or of actual fraud in procuring the contract of insurance, It would not be a case of forfeiture of rights under a contract, nor a case of risks not included within the contract, but a case, in reality, of no contract. It is not, however, necessary for us now to decide this question; nor do we mean to bind ourselves by what we say, for we find the authorities divided on the issue whether or not all questions as to fraud in the procuring of the contract of insurance are foreclosed by such incontestable clauses, where the assurer is allowed a year or more in which to investigate these questions of fraud in procuring the insurance. It will be time to decide these questions when they arise. What we now say is only arguendo.
There is nothing on the face of the policy now under consideration to show that there was any attempt to violate or evade the law, nor anything there appearing, or aliunde, to show that the insured in procuring it attempted to perpetrate a fraud upon either the company, the law, or the public. Insurance contracts should be construed as a whole, in order to ascertain the intention of the parties. We cannot presume, in the absence of any evidence, that a party would take out an insurance policy with the intent to commit suicide two or more years thereafter, or to lose his life by criminal action or by being executed; nor can we presume in the absence of law that the insured intended by the contract to perpetrate a fraud upon the insurance company. The insured is never permitted to write his own contract of insurance. It is written or printed by the insurance company, and for this reason, as well as others, the policy, when doubtful, is construed against the insurer who writes the contract and proposes the terms and conditions, which are accepted or agreed to by the insured. Forfeitures are not favored by the law, and the insurer may waive provisions in the policy or contract intended for his or its benefit.
Construing this contract as a whole, it seems that if the insured dies within two years of its date, the insurance company may contest the cause of the death, or may set up fraud or misrepresentation in the procuring of the insurance, or any other matter that would be a defense to the action on the policy; but if he does not die within two years from issuance of policy, and he pays all the premiums agreed to be paid, then the insurance company will not contest, or refuse the payment of the amount agreed to be paid, on any ground whatever. It was not an agreement to pay him, his estate, or the beneficiary, that amount if he committed suicide or was executed by virtue of the criminal law, or in any other manner contributed to his own death. The company merely agreed and bound itself that it would not litigate any of these questions, though without the incontestable clause they would be a defense. To say that the clause applies to all other defenses except suicide while sane, or death by wrongful, criminal act of the insured, is to read into the policy terms which are not there, and which the very language of the policy excludes.
Mr. Freeman, in a note to the report of the case of Supreme Conclave v. Miles, 92 Md. 613, as reported in 84 Am. St. Rep. 528, 554, 555, has well digested the law as to the effect of incontestable clauses, when the insured takes his own life. It is there said:
"Although an application for life insurance stipulates that the insurer shall not assume liability for the death of the insured by his own hand, yet if the policy declares that, subject to the stipulations requiring the payment of premiums on extrahazardous occupations, a claim under the policy by death occurring more than two years after its date shall be incontestable except for fraud in obtaining the policy, the insurer is liable for the death of the insured by his own hand occurring more than two years after the issuing of the policy. Godwin v. Provident, etc., Ass'n, 97 Iowa, 226 [32 L.R.A. 473] 59 Am. St. Rep. 411, 66 N.W. 157. To the same effect is Patterson v. Natural Premium Mutual, etc., Ins. Co.,100 Wis. 118 [42 L.R.A. 253] 69 Am. St. Rep. 899, 75 N.W. 980, where the policy provided that it should be absolutely incontestable from the date of its delivery and acceptance except for the nonpayment of premiums or misstatements of age. In line with these decisions is that in Simpson v. Life Ins. Co.,115 N.C. 393, 20 S.E. 517. So if the policy provides that the insurer does not assume the risk of the death of the insured by his own hand, sane or insane, but that such condition may be waived in writing, and then provides that after five years from date the policy shall be incontestable from any cause except nonpayment of dues or mortuary assessments if the age of the applicant is correctly stated, the company is liable for the full amount of the policy, if the insured commits suicide or dies by his own hand more than five years after the policy is issued, provided the insured has stated his age correctly, and all dues and assessments have been paid up to the time of his death. Mareck v. Mutual, etc., Ass'n, 62 Minn. 39, 54 Am. St. Rep. 613, 64 N.W. 68. If the policy provides that, if it shall be in force for five years, it shall thereafter be incontestable from any cause except for nonpayment of dues, but also provides that if the insured shall die by his own hand, whether voluntary or involuntary, sane or insane, the company shall not be liable, the suicide of the insured after the policy has been in force for five years does not relieve the insurance company from liability. Mutual Reserve Fund, etc., Ass'n v. Payne (Tex.Civ.App.) 32 S.W. 1063."
In the case of Sun Life Ins. Co. v. Taylor, 108 Ky. 408,56 S.W. 668, 94 Am. St. Rep. 383, the opinion reviews the decisions and text-books. That decision is well headnoted as follows:
"A life insurance policy, providing that it shall be incontestable 'if the insured shall die three or more years after the date hereof, and *Page 342 after all due premiums shall have been received by the company,' is, after compliance with such provision, incontestable, although it also contains a provision that it shall be void if the insured dies in consequence of his own criminal action,' and his death is in fact caused by such action."
In a later case, that of Royal Circle v. Achterrath, 204 Ill. 549,68 N.E. 492, 63 L.R.A. 452, 98 Am. St. Rep. 224, after reviewing the authorities, it was said of the effect of an incontestable clause:
"The only conditions, binding upon the member remaining in good standing after the lapse of the two years, did not embrace any agreements in regard to suicide or death by his own hand. At any rate, the language of section 1 of article 16 leaves it doubtful whether such was the case or not. This being so, the rule applies that, where there is a reasonable doubt as to the extent of the application of the incontestable clause, it must be solved in favor of the beneficiary."
To the same effect is Robinson's Case, 104 Ga. 256,30 S.E. 918, 42 L.R.A. 261; Montgomery's Case, 116 Ga. 799, 43. S.E. 79; Reagan's Case, 189 Mass. 555, 76 N.E. 217, 2 L.R.A. (N.S.) 821, 109 Am. St. Rep. 659, 4 Ann. Cas. 362. Many other cases may be found to the same effect, cited, and notes, in 11 Decennial Digest, subject Insurance, black line 400.
All the cases seem to hold that, where the policy provides that after a year or more the policy shall be incontestable except for certain grounds specified, and that time has elapsed, and none of the grounds excepted exists, then the policy will be given effect as it is written, and that it is incontestable on the ground of suicide or that of capital execution. Some of the cases do hold that if the insured intended, at the time of obtaining the insurance, to defraud the company, the policy may be contested notwithstanding the incontestable clause, because then there would be in law no contract, as if both parties had intended to violate the law. The authorities are not agreed on that question, however, and we will not attempt to decide it until it arises.
Upon the other questions presented on this appeal, the majority concur in the treatment thereof in the original opinion which appears above.
It therefore results that the judgment of reversal must be set aside and annulled, and one of affirmance here entered.
Affirmed.
McCLELLAN, SAYRE, and THOMAS, JJ., concur.