[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 27 Plaintiff, Marie O. Gordon, instituted this suit in the First City Court of New Orleans, Section "B", seeking to recover the sum of $192.00, the alleged face value of an industrial life insurance policy issued by defendant, Unity Life Insurance Company, Inc., on the life of Lillian Hardin, who died on August 27, 1945. The policy of insurance, in which the plaintiff was named beneficiary, was issued on May 3, 1943.
The First City Court rendered judgment for plaintiff in accordance with her prayer. On appeal to the Court of Appeal, Parish of Orleans, this judgment was reversed, and judgment was rendered in favor of defendant, *Page 28 dismissing plaintiff's suit. 30 So.2d 880. On application of plaintiff-relatrix, this court granted a writ of certiorari, and the matter is now before us for review.
The defendant insurance company does not take the position that the insurance policy in the instant case was void or was forfeited for any reason whatsoever, but as a defense urges that the death of the insured resulted from a venereal disease, and that death from such cause was not covered by the policy but was expressly excepted therefrom. The provisions of the policy on which the defendant relies are found in Paragraph 6 thereof, as follows: "* * * Benefits will not be paid at any time for death resulting from * * * venereal diseases or from an intentional act of any person other than the Insured."
Plaintiff, on the other hand, although conceding that the insured died from a venereal disease, takes the position that, since the insured died more than one year after date of the policy, the defense urged by the insurer is not available to it because the policy became incontestable after such period under the incontestability clause. In support of this position she relies on the holding of this court in construing such a clause in the cases of Bernier v. Pacific Mut. Life Ins. Co. of California, 173 La. 1078, 139 So. 629, 88 A.L.R. 765, and Garrell v. Good Citizens Mut. Ben. Ass'n Inc., 204 La. 871,16 So.2d 463.
The incontestability clause is found in Paragraph 5 of the policy and reads thus: *Page 29
"Incontestability. — This Policy shall be incontestable after one year from date of issue except for non-payment of premiums, and except as to the following provisions and conditions relating to misstatement of age; death resulting from disease asherein limited; accidental death; suicide; total and permanent disability, aeronautics, military and naval service." (Italics ours.)
This incontestability clause in plain terms provides that the policy shall be incontestable after one year except from "death resulting from disease as herein limited", and immediately following this provision, in the next paragraph of the policy, we find the equally clear provision that benefits will not be paid at any time for death resulting from venereal diseases. These provisions are unambiguous, certain, clear, and susceptible of only one interpretation, that is, that, if the insured dies as a result of a venereal disease, such death is not covered under the terms and provisions of the policy, which is the contract between the parties, and benefits will not be paid thereunder.
Undoubtedly the insurance company could have urged the cause of death as a valid defense in an action to recover the face amount of the policy if death had occurred as a result of venereal disease within one year from the date of the issuance of the policy, and it could urge after that period also the defense of death resulting from venereal disease because, under the paragraph immediately following the incontestability *Page 30 clause, the benefits under the policy would not be paid at anytime for death resulting from a venereal disease. Thus it was clearly the intention of the parties that, even after the expiration of the period of one year provided in the incontestability clause, a death caused by a venereal disease was still not one covered by the terms of the policy but one expressly excepted therefrom.
Further, the incontestability clause standing alone excepts from its provisions "death resulting from disease as herein limited". This clause clearly and directly informs the insured that death resulting from certain diseases is excepted from the provisions of the incontestability clause.
Subject to the laws and statutes of this state, a policy of insurance is a voluntary contract between the parties thereto. The parties may make it on such terms, and incorporate such provisions and conditions, as they see fit to adopt, and the contract as made measures their rights. See Lado v. First Nat. Life Ins. Co., 182 La. 726, 162 So. 579. Under the provisions of Article 1945 of our Civil Code, legal agreements have the effects of law upon the parties; none but the parties can abrogate or modify them, and upon this principle of law is established the rule that the intent of the parties to the contract is to be determined by the words of the contract when these are clear and explicit and lead to no absurd consequences. Moreover, a contract which is plain and unambiguous will *Page 31 be enforced as it is written and will not be rewritten by this court, for we cannot make the contract for the litigants, it being our province to construe contracts according to their terms if the language used is clear and unambiguous and leads to no absurd consequences. Union Tank Car Co. v. Louisiana Oil Refining Corporation, 184 La. 121, 165 So. 638; Hello World Broadcasting Corporation v. International Broadcasting Corporation, 186 La. 589, 173 So. 115; American Mfg. Corporation, Inc., v. National Union Fire Ins. Co. of Pittsburgh, Pa., 203 La. 515, 14 So.2d 430; Higgins Mfg. Co. v. A. S. Spiess Sales Co. et al., 9 La.App. 403, 120 So. 496; J. R. Watkins Co. v. Hoggatt et al., 13 La.App. 512, 128 So. 180; Brown v. Life Casualty Ins. Co. of Tennessee, La.App.,146 So. 332; United Gas Public Service Co. v. Eaton et al., La.App.,153 So. 702; Jones v. Metropolitan Life Ins. Co., La.App.,157 So. 147; Dockson Gas Co. v. S. W. Const. Co. et al., La.App.,12 So.2d 847.
In our opinion, the insurance policy in the instant case in clear and unambiguous language provides that the risk — that is, death by venereal disease — is not covered by the contract. The Court of Appeal so found, and we think correctly so.
The decisions in Bernier v. Pacific Mut. Life Ins. Co. of California and Garrell v. Good Citizens Mut. Ben. Ass'n, Inc., both cited supra, relied upon by relatrix, in our opinion are not controlling here. In each of those cases, this court construed an incontestability *Page 32 clause in an insurance policy which it considered to be ambiguous, uncertain, and not clear, and resolved the ambiguity in favor of the insured under the principle of law that insurance policies should be liberally construed in favor of the object to be accomplished, and that, in case of doubt, ambiguity, or uncertainty, the conditions and provisions should be strictly construed against the insurer. As we have seen, in the instant case no such ambiguity exists in the incontestability clause.
The respondent insurance company contends that the decisions in the two cited cases are contrary to the rule that an incontestability clause relates to the validity of the insurance contract and not to its coverage; or, stated somewhat differently, that such a clause means, as was said in Metropolitan Life Ins. Co. v. Conway, 252 N.Y. 449,169 N.E. 642, that within the limits of the coverage a policy shall stand unaffected by any defense that it was invalid in its inception or thereafter became invalid by reason of a condition broken, or, further, that the kind of insurance one has at the beginning, that, but no more, one retains until the end. Respondent contends that for this reason these cases should be overruled. Since we have concluded that they are not controlling here, it is unnecessary for us to answer this argument or express any opinion with reference thereto.
In support of her position, relatrix relies also on a provision found in Act 140 *Page 33 of 1938, reading as follows: "* * * Provided further, that upon and after the effective date of this Act any industrial life insurance policy issued in this State shall be incontestable after it has been in force, during the lifetime of the insured, for one year from its effective date of issue, except for nonpayment of premiums." This provision of the act cannot affect our decision in this case, for certainly it was not the intention of the Legislature by the use of such language to write into a policy of insurance a risk which was not covered by, and included in, the contract, or to rewrite, enlarge, or change a contract the terms of which are clear and free from ambiguity, as are the terms of the contract in the instant case.
For the reasons assigned, the judgment of the Court of Appeal is affirmed; relatrix to pay all costs.
O'NIELL, C. J., concurs and assigns reasons.
McCALEB, J., concurs with written reasons.
PONDER, J., absent.