*1 through delaying ex- further pro- period grace, have can tended so the interim tection free of cost and, concerned far as the orig- finally belatedly paying he what agreed new

inally procured a pay, has original full, six effective for date

months’ as of the delayed payment. is what But this damage party suit

assured and the third declining it, sought.

claimants Judge right. clearly Mutual Lovejoy,

Ala. So.

Affirmed. Ky. Louisville, Bullitt, Thomas W.

(Wm. Bullitt, Marshall Brooks Senn M. (of Bullitt, Tarrant), Dawson & Louis- ville, Ky., appellant. brief), IN LIFE MUTUAL JOHN HANCOCK Sandy Paniello, Ky., Louisville, COMPANY,Appellant, SURANCE appellee. SIMONS, Judge, Before Chief TARRENCE, Appellee. Clyda Judg- STEWART, MARTIN and Circuit No. es. Appeals United States Circuit. Sixth Judge. STEWART, Circuit 15, 1957. May Kentucky In this case a district called resolve a narrow question of law. His elusive New York decision is now reviewed court com-

posed judges Michigan, Tennes- though anomaly, see and Ohio. Such unfamiliar, is never fortunate. ap- dispute. The The facts are not in pellee life insur- was the aggregating policies $9,300, ance by appellant company on the life of husband, Roy policies her Tarrence. pursuant prior had been issued to a group policy, provided they deemed to issued and de- should “be livered in the State of New York and according shall construed to the law Roy In 1953 thereof.” Tarrence was con- victed of murder and sentenced death. Martin, Judge, dissented. Circuit He executed electrocution in D.C., 126 also See penitentiary Eddyville, state Ken- tucky, in 1955. The two-year incontestability

contained clauses, undisputed and it *2 prior although elapsed expressed case, its in had the Smith of duty inter- to follow a decision of an to Tarrence’s death. di- mediate versity court in a state payment under appellant refused The highest case, court of the the appellee to re policies, sued the and the having spoken question, state not Kentucky court. state cover in a Tel. was absolute. West v. American appellant to by the cause was removed Co., 1940, 223, & Tel. 311 U.S. 61 S.Ct. Dis the Western the District Court for ap- 179, Therefore, 85 L.Ed. 139. the parties Kentucky. both There trict of pellant argues, of to the law discover summary judgment. for filed motions York, pres- New the district court in the They agreement, district as the in were disregarded ent case should have Gold- presents judge the stated, “that the case and stein instead to looked Smith. single question un of whether and sole is, appellant’s premise law basic New York der the law of course, entirely no avoids can sound. There for crime committed ful execution longer poli any question unqualified under for death benefits obligation being pub cy district in a di of a court life insurance as versity F.Supp. expressed policy.” case 770.] lic to follow the law [139 court, appellee, granted judgment the intermediate state highest if relying the de upon Dis state’s court has not a 1942 decision it, clared if do so even federal District for the Eastern to trict Court expressed York, think the law Co. of Amer as so Prudential Ins. New principle. Goldstein, F.Supp. unsound in West v. Amer ica v. Co., supra; ican Tel. & Tel. Com Six case were The facts in the Goldstein panies Highway Dist., v. Joint presented substantially the same as those 114; case, this, the insur- making In here. Fidelity Field, Union Trust Co. v. clause contained a L.Ed. 109. the death of the time of incontestable at here the victim agree, however, insured. There as We cannot deciding for which the insured of the murder Ins. Prudential Co. of Amer stranger to the Goldstein, executed was a had been ica the district dis nothing Finding regarded obligation. Supreme contract. this public policy of New York law or Court’s decisions in West v. American prevent Co., supra, under Companies would Tel. & Tel. Six circumstances, Highway Dist., supra, Fidelity these Joint Field, in favor supra, case decided Goldstein Union Trust Co. v. beneficiary. year been announced more than a Judge before Moscowitz was called de to appellant, in elaborate Counsel case, cide the Goldstein no there is argu- oral extensive and able briefs and ment, suppose reason to that he unmindful vigorously maintains teaching. reaching their de express does not the law case Goldstein case, cision the Goldstein Mos question in York issue. of New gave explicit cowitz consideration to according rule, appellant, to The true Smith v. Life Ins. Co. and found an earlier decision inapplicable upon concluded that it appellate court intermediate of an facts, D.C., 766-767. York, Smith v. New Dept. 1925, 125 Misc. 2d The Smith case did involve facts sub- only stantially presented “the ease different from 211 N.Y.S. denying question,” Goldstein case on in the and the case by lawful died the insured insured execution. bar. In Smith had been exe- argued murdering strenuously deciding beneficiary. cuted It is beneficiary Upon case the District the Goldstein proceeds Eastern District of New for the became permit of New to follow the law insured’s estate. To failed York to by murder-, insured cise to enrich his estate of New York law here ing in the named issue. It was decided “in ef fect, only contrary State,” another court of the declared to. be *3 policy Guaranty York, is also note- New York. It Trust Co. of N. Y. v. worthy deciding 1945, 1464, 99, 108, that in Smith case 326 65 S.Ct. 1469, 2079, by the New York assumed 89 L.Ed. a federal ques- policy that versed in there the law of that The state. present tion did not contain an incontestable district court cor case rectly 676, clause. 125 211 N.Y.S. 761. followed Misc. that decision. Mac Gregor By present contrast in the v. State Mut. Life Assurance Co., providing: 1942, 607, case “This 280, contained clauses 315 U.S. 62 S.Ct. policy, any except supplementary provi- 86 L.Ed. 846. See Steele v. General granting any Mills, 1947, 433, 439, hereof additional sion 433, specifically 402; Hillsborough Tp., insurance * * * 91 L.Ed. 326, by means, County Cromwell, 1946, accidental shall Somerset v. 620, 630, 445, incontestable after has in force U.S. it been during the of the insured lifetime issue, years two its effective date authority of the case Goldstein except non-payment premium.” impaired by was not the later decision opinion While the Smith discusses cases Appellate Udisky Division in v. jurisdictions expressing from other con- Metropolitan Co., Dept. Life Ins. 2d flicting upon views the issue of whether 1942, App.Div. 890, 264 35 N.Y.S.2d recovery permits an incontestable clause 1021, reversing Udisky Metropolitan sui- the insured meets death Co., Life Ins. 1941, 960, 177 Misc. 32 cide or lawful after the execution 579, opin N.Y.S.2d cited in the Goldstein elapsed, the court has question Udisky ion. The was wheth in the Smith was faced with this case not er there could be in double upon issue and rule it. did not demnity for accidental death of an in Moreover, it is clear that the decision sured who died while in the commission not, appellant felony. in the single Smith case is paid as the a The insurer had argues, premised theory policy that benefits under without dis pute. Udisky lawful risk execution is a See Life Co., Sup., 1945, insurer never assumes in New York Ins. 54 N.Y.S.2d 732 Although (Referee’s opinion upon as a matter of remand). law. Appellate simply denied, Division insured’s held estate that New public policy expressed as declared that “the if Jacob rule otherwise policy America, Prudential Ins. Co. of a 4th. Dept., App.Div. 884, 27, 256 9 N.Y.S.2d who has vested interest.” 125 Misc. 1939, 623, affirmed 281 N.Y. 22 N.E.2d 678, 211 N.Y.S. 763. That statement (disallowing recovery 177 of double in inconsistent with the view risk demnity where the insured had died: policy one assumed under was not submitting illegal while operation) to an Compare Scarborough of law. a matter changed by not been the New York. Co., 1916, Ins. v. American Nat. 171 N.C. Legislature1 482, L.R.A.1918A, 896, 88 S.E. Co., v Life Ins. Collins It follows that the district court cor Pa.Super. rectly correctly applied 27 discerned and the: public policy law and of New York.2 only case is thus the The Goldstein directly point upon pre- judgment decision is affirmed. Although Code, question York Insurance 1. New McK.Consol. discussed 155(1) (b), making Laws, court, appears while § c. in the district two-year mandatory incontestable conclusion reached is in accord with the policies, in life insurance does not clause of the forum. Sun Life require applicable Taylor, Ky. a clause be such Ins. Co. v. indemnity provisions. double S.W. 668.

g<) Judge (dissenting). deliber- lie insured’s not MARTIN, Circuit ately doing something make which will inter mature. the act Therefore Smith v. mediate Metropolitan its ma- insured which accelerates Misc. turity, and thus benefits his estate or the (decided Octo N.Y.S. beneficiary, prevent recovery. should my judgment controls 1925), ber holding Such does not work a forfeiture. There the case. decision the instant away right possessed takes It no fixed presented stated anyone, merely prevents those who convict whether estate of a man represent through insured or take murdering his ed of and electrocuted getting him from *4 a benefit from his policy wife, of of a who was wrongful act.” life, insurance on could recover his holding policy provision company a that a which contained the insurance lia- beneficiary should the ble the insured was the interest of electrocuted the her death. for case, crime of murder in vest the insured the Goldstein nega Judge the court answered that tive, United States Mos- District stating pointed that, oth that the rule would be cowitz out in the Smith policy payable just discussed, were to bene case which has been erwise the a there ficiary having incontestability poli- no’ a interest. vested clause in the that, by killing opinion cy of asserted the bene insurance there But the involved. ficiary, policy opinion and the- insured made the New York proceeds case, supra, his to himself and Smith the com- its made legal reasoned in a that in on estate. sense, It was that ment some the cases which policies his life where the insured lost in- 'the relied contained clauses; by operation punishment contestability that, law notwith- standing by him, despite the crime of murder committed this and the fact that quite expired, the “situation is the same as it is had .the policies when the commits insured suicide”: there could be no really brought by his death is his met about where the insured his death at the committing justice. act the crime. The New The North Carolina hand case, supra, recognized Pennsylvania case, York the conflict au- holding rejected supra, thorities and those were cited. by the death of the insured lawful exe- Judge pointed District Moscowitz out cution for a crime does not absolve an that, as the New York insur- inasmuch company liability insurance from to death excluded law. citing estate, decisions to that effect specifiedcircumstances, in certain caused Illinois, Tennessee and Texas. To by legal was no inclusion of there contrary, opinion of the New and that it was a execution reasonable approval York court cited with evident permit an intention that- to deduction holding cases covery that there can re- be no exception applied. not be He such on, an insurance where the Udisky tfeat the considered by insured life loses his lawful execution. Metropolitan Co., Life Ins. 177 Misc. Co., Burt v. Union Central Life Ins. 187 960, 32 N.Y.S.2d answered the in- 216; argument company’s surance that a Northwestern Mutual Life Ins. Co. v. insuring against expressly clause by McCue, enforceable, execution would inas- 419; Scarborough L.Ed. American carry as such would much Co., Nat. Ins. 482; 171 N.C. 88 S.E. inference that it was secured in natural Collins v. Co., anticipation committing Life Ins. of the insured’s Pa.Super. 353. a crime. Near opinion, end of'its the decision of the But trial court York right Judge Udisky case, said: “The Moscowitz recover to is conditioned’by pub- cited, appeal. a Udisky Sound on was reversed App. policies upon his life other than Northwestern; (decid Div. 35 N.Y.S.2d evincing reversing paid off, opin companies other had a 22, 1942). In its ed June general ion, custom in insurance circles Appellate said that Division acknowledge

provision exe- that the risk of lawful in the New chang actually interpreted as cution of the cov- insured was law was not Supreme policies. ing suf ered public policy the insured “where of, held, nevertheless, or in injury in- in the course or dies fers felony”; surance, point, attempt silent does to commit on merely cover the death insured that the New statute weight Obviously, existing hand declaratory of the law. no law. was attached other to the actions bar con- in the case trial admitting companies lia- pro- Moscowitz sidered that bility. quot- in this New York law nounced the reasons, foregoing “In I paragraph For 767]: think [43 ed granting prevents recovery analysis, New York law final way appellee-widow present in no on the insurance like the one in a case *5 covering dead is now the life of hus- criminal who her deceased benefits the band, Roy named bene- benefits his Tarrence. and at least will be in most instances ficiaries who support deprived persons On the other his death. maintenance ledger specula- purely side of his possibility a man who knows tive his kin are cared punishable apt a crime more to commit assump- reply In to such death. tion, what sort well be asked it voiding of man’s crime deterrent UNGAR, Inc., Petitioner, J. penalty may be, when the life his act.” halt criminal death does COMMISSIONER OF INTERNAL REV paragraph not an actual But Respondent. ENUE, law, fol- analysis the New (Transferee), Petitioner, Jesse UNGAR the citation lowed Supreme of South Carolina COMMISSIONER OF INTERNAL REV Life Insurance v. New Weeks ENUE, Respondent. 223, 122 wherein S.E. 128 S.C. 271, 272, Nos. Dockets

beneficiary had recovered principles insurer Appeals States Court United involved here. similar Second Circuit. very Moreover, at the conclusion Argued April opinion, Moscowitz stressed May 13, Decided that, in of a number the cases fact murderers, many insur- of notorious companies not defend involved did upon the murderers. lives Life Ins. Co. Mutual Northwestern McCue, argued 419, supra, attorney children the McCue father, who had been executed that their killing mother, had insurance their