Opinion
40598.
DECIDED APRIL 23, 1964.
Action on insurance policy. Fulton Civil Court. Before Judge Williams.
Woods Mitchell, Freeman D. Mitchell, for plaintiff in error.
Jones, Bird Howell, F. M. Bird, Paul L. Coulter, Trammell E. Vickery, contra.
1. The petition is subject to the reasonable inference that acts of state of the Cuban government affected the final performance of the insurance contract held by the plaintiff.
2. (a) Questions arising out of acts of state by recognized foreign governments sued on in the United States must be determined by Federal law.
(b) Rights abridged by an act of state of a recognized foreign government within the domain of its sovereignty will not be subject to rectification in Georgia courts.
(c) As the Supreme Court of the United States has announced the policy of refraining from adjudicating issues arising out of acts of state, local courts must exercise a like degree of judicial restraint within this area of Federal law.
DECIDED APRIL 23, 1964.
The plaintiff Rolando Rodriguez Martinez, an expatriate from Cuba, filed suit against Crown Life Insurance Company of Toronto, Canada, seeking to recover the net maturity value plus interest of an insurance policy together with punitive damages for unconscionable bad faith and attorney's fees. The insurance company does business in Georgia.
An English translation of the policy was attached to the petition. The policy was a twenty-year endowment plan issued on July 17, 1941, and maturing and becoming payable on July 17, 1961. The policy provided for amounts and dates of premium payments and the sum payable on maturity. Currency was defined in the policy as follows: "The pesos referred to in this policy are pesos, current national money of Cuba and every amount payable to or by the company under this policy shall be payable in such pesos."
The petition alleges that "the parties intended that payment be made at the maturity date of the policy under the same or similar circumstances and conditions as were in existence as of the date the policy was issued"; that plaintiff became an exile from Cuba in 1962, at which time "the currency payable upon maturity of the policy had been withdrawn from circulation as a medium of exchange, is of no value and is not exchangeable between free countries"; that the defendant insurer has offered "to pay the plaintiff insured in Cuba, with existing Cuban currency, which is of no value to the plaintiff exile"; that the insurer has acted in "unconscionable bad faith in attempting to force the plaintiff insured to return to Cuba to collect payment at a time when the defendant . . . knows . . . that the plaintiff as a refugee and exile from Cuba is prohibited from returning to Cuba under any circumstances and knows . . . that the exile's return to Cuba . . . would result in immediate death to the plaintiff"; that any "provision in the policy contract pertaining to payment in Cuban currency, under the present conditions relative to the national currency of Cuba, is against public policy and contrary to equity, good conscience and good faith" and therefore any such provision is null and void; that "the fulfillment or accomplishment of any alleged provision or condition in the policy contract pertaining to payment to plaintiff in Cuba, in Cuban currency, is an impossibility and cannot be performed by the defendant insurer"; that "the reason the plaintiff was forced to leave Cuba was to avoid becoming indoctrinated with Communism, and to avoid being forced to believe in and live under a system of government not of his free choice"; and that the insurer "has acted in unconscionable bad faith by virtue of its failure to pay over the due and just proceeds and interest of the matured policy to the plaintiff, and by virtue of this bad conduct . . . has damaged" the plaintiff.
The trial court sustained the defendant's general demurrer and dismissed the petition. It is to this judgment that exceptions are brought.
1. The petition shows clearly that the policy matured on July 17, 1961, at a time when the plaintiff was in Cuba. The plaintiff did not become an expatriate until sometime in 1962. The petition contains no explicit allegation as to the reason why the amount due on the maturity of the policy was not paid in Cuba prior to the plaintiff's departure. As the policy forming a part of the petition declares unambiguously that the maturity value was payable on July 17, 1961, it is reasonable to infer, in absence of allegations to the contrary, that the sum would have been paid in Cuba by the defendant insurer at any time on or after the maturity date had the plaintiff been willing to accept the payment. This inference is supported by the allegation that the insurer "has offered" to pay the insured in Cuba with existing Cuban currency. The petition does not disclose where or when this offer to pay on these terms was made. This allegation, coupled with others recited in the factual summation, lends credence to the inference that the final act necessary to complete the full performance of the agreement, i.e., the payment by the insurer of the maturity value of the policy, was not accomplished in Cuba solely because of conditions adverse to the plaintiff's interests existing there. There is nothing which suggests the insured defaulted in the payment in Cuba.
Construing the allegations of the petition as a whole, these conditions adverse to the plaintiff's interest could only have been occasioned by acts of state of the Cuban government, for no power in Cuba, other than its own government, could have withdrawn one type of Cuban currency as a medium of exchange, rendered it valueless, and replaced it with another which in turn is valueless to an expatriate as alleged. Neither could any power other than the Cuban government cause it to be an "impossibility," as alleged, for the insurer to fulfill presently in Cuba, in Cuban currency, the final act of payment for the reason that should the exile return to Cuba to accept the money his immediate death would result. Further, the petition specifically asserts that "the reason the plaintiff was forced to leave Cuba was to avoid becoming indoctrinated with Communism, and to avoid being forced to believe in and live under a system of government not of his free choice."
The petition unmistakably discloses that the cause sued on here was occasioned by acts of state of the Cuban government which affected the final performance of the insurance contract held by the plaintiff.
2. There is a precedent voiced recently (March 23, 1964) by the Supreme Court of the United States which commands a judgment of this court adverse to the plaintiff in error. The case of Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 ( 84 SC 923, 11 L.Ed.2d 804) clearly enunciates the policy of our ultimate judicial power to be that rights abridged by an act of state of a recognized foreign government within the domain of its sovereignty will not be subject to rectification in any of the courts within the United States regardless of merit or compassion. In announcing this precept the Supreme Court recognized the paramount importance of the executive branch of government in matters bearing upon this nation's relations with foreign governments and chose not to risk impairment of the executive's influence or its confident and positive efforts in this area by isolated judicial determinations of questions ensuing from foreign acts of state. The policy was endowed with substance and ample power when the Supreme Court declared that all litigation evolving out of acts of state must be determined by Federal law. One significance of this declaration is that the announced intention of the Supreme Court to refrain from adjudging questions arising out of acts of state makes it completely inappropriate for local courts, such as ours, to determine them. Local courts must exercise the same degree of judicial restraint within this area of Federal law which the supreme Court of the United States has imposed upon itself.
The petition before us clearly alleges the abridgment of rights of the plaintiff through acts of state committed by the present Cuban government. These acts of state are not within the province of the courts of Georgia to adjudge.
The judgment of the trial court sustaining the defendant's general demurrer and dismissing the plaintiff's petition is affirmed.
Judgment affirmed. Jordan and Eberhardt, JJ., concur.