Insured was convicted of murder and legally executed by the state. Plaintiff is the beneficiary of his life insurance policy. Held, no recovery on the ground that the risk of legal execution was impliedly excepted in the policy as a matter of law. Southern Life & Health Ins. Co. v. Whitfield, (Ala. 1939) 190 So. 276

Price, G. Randall

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INSURANCE - LEGAL EXECUTION OF INSURED AS A DEFENSE

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Michigan Law Review Volume 38 Issue 4 1940 INSURANCE - LEGAL EXECUTION OF INSURED AS A DEFENSE G. Randall Price University of Michigan Law School Follow this and additional works at: https://repository.law.umich.edu/mlr  Part of the Insurance Law Commons Recommended Citation G. R. Price, INSURANCE - LEGAL EXECUTION OF INSURED AS A DEFENSE, 38 MICH. L. REV. 551 (1940). Available at: https://repository.law.umich.edu/mlr/vol38/iss4/15  This Regular Feature is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact mlaw.repository@umich.edu. 1940} RECENT DECISIONS 55 1 INSURANCE - LEGAL EXECUTION OF INSURED As A DEFENSE - Insured was convicted of murder and legally executed by the state. Plaintiff is the bene-ficiary of his life insuran!=e policy. Held, no recovery on the ground that the risk of legal execution was impliedly excepted in the policy as a matter of law. Southern Life & Health Ins. Co. v. Whitfield, (Ala. 1939) 190 So. 276. Many life insurance policies contain no express exception of death by legal execution. When the insured is executed and the policy silent on this point, the decisions are in conflict as to whether the insurance company may prevail on the defense of an impliedly excepted risk in a suit brought by the beneficiary on his life insurance policy. The tendency of modern decisions is to allow recov-ery.1 This seems to be the better view.2 However, a recent Massachusetts cases and the principal case have held to the contrary. The formal reasoning of the court in the principal case deserves particular scrutiny. The court first assumes that a policy specifically insuring a life against the risk of legal execution would be contrary to public policy. From this assumption it concludes that this risk cannot be impliedly included in a general coverage. Thus the court reasons that because the part alone is bad-i.e., that a policy of insurance insuring only against death by legal execution would be contrary to public policy-that such risk impliedly included in a larger coverage must likewise be held contrary to public policy. This reasoning may well be questioned. First, no instance has been found where a policy of the type first assumed by the courts has been issued. At this point the validity of the first assumption and its applicability to the decision in the instant case may be doubted as being unfounded in fact. Second, it is submitted that in its reasoning the court has fallen into the part-whole fallacy, in that different consideratio~s of public policy are involved when the express risk of death by legal execution alone is insured against than when that risk is only one of many included in a policy of general coverage. In I 898 the Supreme Court of the United States applied the same type of reasoning UStJ by the Ala-bama court in refusing recovery in the Ritter case,' involving suicide of the in-sured. In I 902 it again denied recovery in the Burt case/ where insured was 1. For a collection of the latest cases, see a note in 35 M1cH. L. REv, 836 (1936). 2 VANCE," INSURANCE, § 229 (1930); R1cHARns, INSURANCE, 4th ed., § 370 (1932); 6 CooLEY, BRIEFS oN INSURANCE, 2d ed., 5222 (1928). 8 Millen v. John Hancock Mutual Life Ins. Co., (Mass. 1938) 13 N. E. (2d) 950. 'Ritter v. Mutual Life Ins. Co. of New York, 169 U. S. 139, 18 S. Ct. 300 (1898). 6 Burt v. Union Cent. Life Ins. Co., 187 U. S. 362, 23 S. Ct. 139 (1902). The Burt case was followed in Northwestern Mutual Life Ins. Co. v. McCue, 223 552 MICHIGAN LAW REVIEW [ Vol. 38 executed, upon the same type of reasoning, relying upon the analogy of the suicide cases and citing the Ritter case as well as the English case of Amicable Sociey v. Bolland,'-' which involved forfeiture of goods for conviction of a crime. In I 920 the Supreme Court avoided the fallacy in the reasoning applied in Ritter case and allowed recovery in two suicide cases,1 thus rejecting the same type of reasoning employed by the Alabama court in the instant case. The Ala-bama cour~ emphasized one type of public policy-that of preventing insurance against the risk of legal execution. It is submitted that countervailing policies should also be considered. That a man should not be indemnified for the results of his own criminal act is axiomatic in the common law. Thus an insured who burns his own building to collect the insurance should not recover from the insurer upon the theory of an implied exception. But if a third person should, without collusion with the insured, ~urn the same building, there could be no objection to the insured's recovering for his loss. It is apparent, then, that a policy may 2t times be unenforceable between two persons under one set of facts, but enforceable between them under a different set of facts. Also, policy considera-tions may make a contract unenforceable between A and B, but that does not necessarily mean that it cannot be enforced between A and C where the same reasons for unenforceability are not present.8 In the life insurance cases, the insured profits nothing from the results of his own insurance after he has been executed. Further, there should be a public policy in seeing that dependents of the executed criminal are cared for, not penalized because of his misdeeds. As long as insurance rates are based upon deaths from all types of risks, and life insurance is not generally considered to be a contract of indemnity, no advantage is being taken of the insurer. Policy questions are always difficult of solution, but courts should face them instead of applying mechani_cal methods of reason-ing in the decision of cases. G. Randall Price U.S. 234, 32 S. Ct. 220 (1912), which is the latest Supreme Court decision on execu-tion of the insured. 6 4 Bligh N. S. 194, 5 Eng. Rep. 70, z Dow.'& Cl. 1, 6 Eng. Rep. 630 (1830). T Northwestern Mutual Life Ins. Co. v. Johnson, 254 U. S. 96, 41 S. Ct. 47 (1920), discussed 30 YALE L. J. 401 (1921). 8 Levin, "The Varying Meaning and Legal Effect of the Word 'Void,'" 32 M1cH. L. REV. 1088 (1934). 

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INSURANCE - LEGAL EXECUTION OF INSURED AS A DEFENSE

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