Opinion
No. 33515.
January 16, 1939.
1. TIME.
A "day" begins at midnight and ends the following midnight.
2. TIME. Insurance.
Where burial policy, which was to become effective February 1, 1936, and application therefor, did not fix any hour within such day at which policy would become effective, policy took effect at the earliest moment of February 1st.
3. INSURANCE.
A policy will be given such construction as will make it effective.
4. INSURANCE.
Where application for burial policy which was to become effective February 1, 1936, disclosed that premium had been paid prior to February 1st, policy covered insured who was killed on February 1st and whose body reached funeral home in early morning of the 1st around 7 o'clock, notwithstanding policy had not been received by insured but was in the mail.
ON SUGGESTION OF ERROR. (Division B. Jan. 30, 1939.) [185 So. 817. No. 33515.]1. INSURANCE.
Where burial benefit contract was to take effect at earliest moment of February 1 and insured came to his death between that time and 7 o'clock in morning of February 1, burden was on insurer to establish that policy was not mailed until after insured's death.
2. INSURANCE.
Where burial benefit contract was to take effect at earliest moment of February 1 and insured came to his death between that time and 7 o'clock in morning of February 1, record was insufficient to establish affirmative defense that policy was not actually placed in mail until after insured's death.
APPEAL from the circuit court of Grenada county; HON. JNO. F. ALLEN, Judge.
Cowles Horton, of Grenada, for appellants.
No cause of action of any kind was presented against Garner Brothers, the undertakers, who merely buried the deceased and were paid therefor by the plaintiff. Just why judgment against them was granted we do not understand.
This is not a suit for reformation of a burial contract, nor for damages for failure to issue a contract, nor a suit upon a verbal understanding between the parties or their agent. It is a simple suit upon a written contract declared upon by the plaintiff. Unless the record discloses that she has made out her case both on the law and the facts judgment here for the appellants must, of course, be granted.
Bradley v. Howell, 161 Miss. 346.
Insurance, whether for burial or otherwise, is purely a matter of contract and the terms of the contract must, of course, control the rights of both parties.
Insurance Co. v. Bouldin, 100 Miss. 672; Cook v. Ins. Co., 156 Miss. 21; Ins. Co. v. Scott, 160 Miss. 545; Ins. Co. v. Alexander, 122 Miss. 827; Lavender v. Ins. Co., 171 Miss. 182; Ins. Co. v. Ware, 171 Miss. 341; Casualty Co. v. Perryman, 162 Miss. 871.
No law required the association to accept the application tendered to it in this case. It could reject, accept or make a counter proposition as it might see fit.
Savage v. Ins. Co., 154 Miss. 89.
Propositions and counter-propositions do not make a contract; before either party is bound the proposition of one of them must be accepted by the other exactly as proposed; there must be a meeting of the minds on the same thing; and this is true of insurance as of other contracts.
N.Y. Life Ins. Co. v. McIntosh, 86 Miss. 236; Ins. Co. v. Lbr. Co., 118 Miss. 754; Savage v. Ins. Co., 154 Miss. 89; Ins. Co. v. Lee, 161 Miss. 85.
If the application here called for a policy to embrace a person dead when it was delivered, the association did not agree to issue such a policy. If Curtis did not accept the provisions of the policy delivered to him the minds of the parties here have never met.
Mutual Life Ins. Co. v. Young, 23 L.Ed. 154.
There can be no question with regard to the action of the association on this application. All that it did and the only information conveyed by it to the applicant was by the delivery of the policy contract itself which expressly provided that it did not apply to anyone not in good health at the time when the policy was delivered.
No insurance contract could be made in this case until the actual delivery of the contract to the applicant under the express terms of the policy contract itself.
Ins. Co. v. Russell, 142 Miss. 397; Savage v. Ins., Co., 154 Miss. 89; Ins. Co. v. Shoemake, 126 Miss. 497; Ins. Co. v. Smith, 129 Miss. 544; Ins. Co. v. Lee, 161 Miss. 85; Turner v. Weaver, 126 Miss. 497.
Plaintiff could not recover here without meeting the burden of proving that Wortham was, as the policy required, in good health at the time it was delivered. Hence her suit ought to have failed.
33 C.J. 84, 107; 37 C.J. 614; 14 R.C.L. 900; 153 So. 759.
The provision of this contract required good health at the time of its delivery.
37 C.J. 404, et seq.
The fact is that Wortham, on account of whose death suit was brought, was dead before the contract was delivered. No burial insurance as to him has ever, therefore, been in force, for the association has never agreed to insure a person dead before the contract was delivered.
Ins. Co. v. Lbr. Co., 118 Miss. 754; Ins. Co. v. Lee, 161 Miss. 85; Savage v. Ins. Co., 154 Miss. 89; Ins. Co. v. McIntosh, 86 Miss. 236; Ins. Co. v. Cooper, 178 Miss. 450; Jacobs v. Ins. Co., 71 Miss. 658; Turner v. Weaver, 126 Miss. 497; Ins. Co. v. Young, 23 L.Ed. 152; Giddings v. Ins. Co., 26 L.Ed. 92.
The condition in this policy requiring good health at the time of its delivery was a valid one and since deceased was not then in such condition, but was even dead, plaintiff ought not to have recovered.
Ins. Co. v. Hugger, 158 Miss. 686; Ins. Co. v. Shoemake, 126 Miss. 497; Ins. Co. v. Smith, 129 Miss. 544; Ins. Co. v. Vaughan, 125 Miss. 384; Turner v. Weaver, 126 Miss. 506; Savage v. Ins. Co., 154 Miss. 89; Ins. Co. v. Lee, 161 Miss. 85.
Assuming that Wortham, was, as the application states, in good health when the application was signed, he was dead when the contract was delivered in the mail to Curtis and the latter had no right to accept same as a contract embracing Wortham without advising the association of the change in Wortham's condition.
Ins. Co. v. Elmore, 111 Miss. 137; Ins. Co. v. Smith, 129 Miss. 544.
Under the provisions of this contract no burial could be called for except "upon receipt of notice of the death" of the party insured. No such notice was given in this case and the appellants did not know that Wortham, the dead person, and Charlie Curtis, the one named in the policy, was the same party. Without such notice, no liability could attach.
Ins. Co. v. Keeton, 95 Miss. 708; Ins. Co. v. Alexander, 122 Miss. 827; Berry v. Ins. Co., 165 Miss. 415; Ins. Co. v. Hebron, 166 Miss. 157; Gresham case, 170 Miss. 220.
Walter D. Davis, of Winona, for appellee.
From a study of the record in this case, there seems to be no doubt as to the intention of the association with regard to delivery of the policy. The intention of the association was to accept the application for insurance on the family of Rasmus Curtis, else the certificate of insurance would not have been signed by the secretary, or the policy placed in the mails for delivery to Rasmus Curtis. In spite of the fact that the policy of insurance issued on the family of Curtis, and in effect since midnight of January 31, 1936, still remained in the office of the Mississippi Benefit Association on the morning of February 1st, would not nullify its protective value. If the fact that manual delivery was necessary under circumstances of this kind, then it would have been possible for the association to have diminished the risk for which they contracted, by failing or neglecting to mail that policy on Feb. 1st, or for several days thereafter, at the expense of the Curtis family.
It is true that this policy of insurance states "that upon receipt of notice of death of party insured, that Mississippi Benefit Association will furnish a funeral, etc." It is also true that appellants buried Curtis, or Wortham, without knowledge that he was covered by this burial policy. On the other hand, at the time of the burial, Rasmus Curtis had not received the policy of insurance, nor was he aware at that time that his wife, Lora, had applied for same. The fact that he had not received it, however, was no fault of Rasmus Curtis, but an act over which he had no control. Had the association seen fit to mail the policy promptly in order that it might have been in his hands by February 1st, or had Rasmus Curtis lived in the town of Grenada, where he could have received his policy the same day that it was mailed, or had he had the foresight to call for the policy personally before it was mailed, there would have been no question in this case. In view of the situation, Rasmus Curtis did all that was possible for him to do. As soon as Curtis returned home and the policy was delivered to him at the post office, he immediately returned to Grenada, presented the policy to Garner Bros. Funeral Home, an authorized agent and the home office of the association, and advised them that Charlie Curtis and Charlie Wortham were the same. This was all that the policy required him to do.
Compared to other types of insurance, burial insurance appears to be an uncharted field. However, examination of this policy will disclose many similarities to the well known form of an insurance contract. Apparently, appellants rely upon the same defenses as would any other insurance company under like circumstances. In that event, appellants must subject themselves to the same attacks as would be directed to any other type of company. If such be the case, certainly a burial association cannot issue a policy wherein its own language specifies that the application for said policy will be the consideration and a part thereof, yet disregard the explicit terms of the application.
New York Life Ins. Co. v. Gresham, 170 Miss. 211.
When the applicant dealt with the agent of the insurer apparently within the scope of her authority, and in the absence of any notice, either actual or implied, to the contrary, did applicant not have every reason to believe that this contract would be in full force and effect on February 1, 1936.
Ins. Co. v. Warren Gee, 118 Miss. 704; Mutual Life v. Shoemaker, 126 Miss. 497.
Appellee respectfully submits that the company, having accepted and retained a membership fee and premium, although having been paid on Sunday, would be estopped to deny the validity of the policy of insurance.
Campbell v. Davis, 94 Miss. 164; Koontz v. Price, 40 Miss. 341; Schultz Baking Co. v. Goodson, 119 So. 353.
Had proof of death been required under the terms of the policy, insurer's denial of liability on other grounds would have constituted a waiver of proof otherwise required.
Clegg v. Johnson, 164 Miss. 198.
Our courts have repeatedly held that where a policy of insurance bears two interpretations, the one will be adopted that sustains the claim for indemnity.
Shivers v. Ins. Co., 99 Miss. 744; Ins. Co. v. Blaylock, 144 Miss. 541; Casualty Co. v. Perryman, 162 Miss. 871.
It is an elementary principle of law that a contract of insurance will be construed most strongly against the insurer and most favorably to the insured.
Casualty Co. v. Products Co., 159 Miss. 396.
Cowles Horton, of Grenada, for appellants on Suggestion of Error.
We are in perfect accord with the statements as to when the first day of February began and, under the very principle of law embraced therein, argued in the court below that the association had the whole of that day within which to accept or decline this application. This, we have no doubt, must be the undisputed law.
13 C.J., 682; 62 C.J., 979; 26 Miss. 309.
Applied to the facts of this case, however, that principle may not, we respectfully submit, justify the conclusion which the court has reached.
At the time of the delivery (mailing) of the policy the insurer did not know that Wortham was dead.
Wortham's death occurred before the policy was ever placed in the mail and before the insurer ever in any way lost control thereof. In this situation we direct attention to the applicable authorities already cited by us and the following:
"The policy does not become effective or enforceable where the death of the applicant occurs before the delivery of the policy." 37 C.J., 401 and notes, 402, section 73 and notes.
"It is established that there can be no binding delivery of a policy after the death of the assured." Life Ins. Co. v. James, (Ala.), 153 So. 764.
"Parties make no contract where the thing which they supposed to exist, and the existence of which was indispensable to the making of their contract, had no existence." Bacon, Life and Acc. Ins. (4 Ed.), section 346, page 706.
In Giddings v. Ins. Company, 102 U.S. 108, the party to be insured died before delivery of the policy. The court said that "the proposition of the company expired with his life. After his death, his legal representatives could not act vicariously for him. To allow them to enforce such a claim would be contrary to the plainest principles of both law and equity."
Ins. Co. v. Ewing, 92 U.S. 377; Life Ins. Co. v. Young, 90 U.S. 85.
If Wortham had been dead when the application was signed, we have no doubt that the court would hold that no insurance as to him was ever in force. Nevertheless there is no express representations in the application that he was then alive. It was, however, certainly within the contemplation of the parties and necessarily implied that he was alive. We believe there can be no doubt about these two propositions. If this is true then the intent of both parties are to insure a live and not a dead person. Keeping this in mind we maintain that the opinion, as it stands, necessarily overruled the Elmore Case, 111 Miss. 137, and the Smith Case, 129 Miss. 544, on the following propositions:
In those cases it was distinctly held that if there was a change in the condition of the health of the insured between the time of the application and the delivery of the policy it was the applicant's duty to inform the insurer of that change. We submit that a change of condition from life to death is even of far more importance than a change of health and if the insurer in this case had the right to accept delivery of a policy intended for a live man after the man had died, the portion of the opinions referred to ought to be expressly overruled.
The court states also in its opinion that the reference in the policy to health was "in relation to disease and not to sudden death by extraneous agencies." With the utmost deference we believe the court has misconstrued both the application and the policy in this respect, for if the party was dead when the contract of insurance was made he could not have been in good health.
The policy, it is true, does not expressly state that the persons insured must be alive when the policy is delivered or at any other time. Neither, however, does the application so state. Nevertheless, both of them use the term "health" according to exactly the same definition and meaning. If the policy requirement of "good health" does not mean that the applicants must be alive, then the statement in the application that they are enjoying the best of health does not mean that they are alive then. No one, though, would ever claim that the application would relate to a dead person. This is true, because it is necessarily implied that those to be insured are alive and in the best of health by the terms of the application.
Henrietta Brooks, plaintiff in the court below, was the assignee of a policy or certificate issued to Rasmus Curtis and family, consisting of Rasmus Curtis, Lora Curtis, his wife, and Charlie Curtis, who lived with Rasmus Curtis as a member of the family, and who was a minor sixteen years of age. The policy or certificate contracted for a funeral in the amount of $125, and was issued upon an application contract which reads as follows:
"I hereby apply for a benefit contract, covering each member of my family as listed below:
Name of Applicant Age Dues
Rasmus Curtis 44 25 Lora Curtis 43 25 Charlie Curtis 16 25
Total Dues per Month 75
"Street address or rural route ____ "City or town Kilmichael, Mississippi. "Occupation Farmer (of head of family)
"This policy to be issued and be in full force and effect on the 1st day of February, 1936. Subsequent premiums due on the 1st day of each month hereafter. I hereby certify that myself and family are enjoying the best of health; that no member of my family or myself is at present afflicted with Cancer, Tuberculosis, Heart or Kidney Disease, Insanity, or other serious illness. Signed at home, Mississippi, on the 26 day of Jan. 1936.
"Witness: Mrs. Walter Branch, Agent. "Name of applicant in full: Rasmus Curtis.
"To Be Filled at Home Office.
"Date of Certificate 2-1-1936. Funeral Director's Approval, Lee. "Certificate No. 58, 117. "Endorsed on back: Filed 7-25-38. H.D. Horn, Clerk.
"Received of Rasmus Curtis $Pd. Covering Membership Fee, and the sum $Pd. Covering the first month's dues for a Benefit Contract in the Mississippi Benefit Association, Grenada, Mississippi. Policy to be issued and be in full force and effect on the 1st day of Feb. 1936.
"This receipt is for a policy to be issued on the 1st or 15th of the month. Policies are only issued on the 1st or 15th of each month and do not go in benefit until the 1st or 15th, whichever is the date of issue. Lee F. Home, Agent.
"Endorsed on back: Filed June 6th, 1938. Filed 7-25-38, "H.D. Horn, Clerk. Exhibit A."
It appears from this receipt that the policy was to be issued on the first day of February, 1936; and also that no policies were issued by the Funeral Benefit Association except to take effect on the first and fifteenth of the month following the application. The policy contract or certificate was duly issued, and bears date of February 1, 1936, but had not been received by Rasmus Curtis on the day it was issued, being in the mails, whence it reached him in due course. The record shows the above-mentioned application to have been taken by Mrs. Branch, a solicitor for the Lee Funeral Home, that the application was sent to the Association by the Funeral Home, and that the application was taken out and signed by Lora Curtis, wife of Rasmus Curtis. Rasmus Curtis was informed of the death of Charlie Curtis — whose real name was Charlie Wortham — by a telegram, and thereupon went to Grenada, Mississippi, from his home in Kilmichael, where he found the body of Charlie Wortham, otherwise known as Charlie Curtis, at the funeral home of Garner Brothers. He did not mention the burial contract to anyone before the funeral of the deceased, as the policy or certificate was not delivered to him through the mail until after the funeral. It is stated that after receiving the funeral contract he came to Grenada and advised Garner Brothers thereof, but made no proof of death thereunder. This was before Garner Brothers was paid for the funeral expenses by Henrietta Moore, who had contracted to pay $175 therefor, by the assignment to Garner Brothers of a policy on the life of Charlie Curtis or Wortham. Henrietta Moore was the latter's mother, his father having predeceased him. The deceased was interred under the name of Charlie Wortham, and none of the defendants knew, prior to his burial, that Charlie Curtis and Charlie Wortham were one and the same person. Rasmus Curtis assigned the burial policy or certificate to Henrietta Moore, who brings this suit thereon.
A telegram was introduced in evidence, but it did not indicate the hour of the death of Charlie Curtis or Wortham. It reads as follows: "Grenada, Mississippi, February 1, 1936. Rasmus Curtis, Kilmichael, Mississippi. Your son Charlie killed come at once Henrietta Moore. 9:45 A."
The Board of Health record of the death was also introduced, showing the date of death to be February 1, 1936, but not the hour of death; that his death was caused by a gunshot wound; that the deceased was a male, of the black or colored race, single, aged eighteen years; gave his name as Alex Worthum; the maiden name of his mother as Henrietta Williams; of the informant as Henrietta Brooks, and place of burial as Kilmichael; cause of death as homicidal, date of injury 2-1-36, hour not given; name of undertaker Garner Brothers. It appears from the record that the body was brought to the funeral home near seven o'clock, A.M.
There was a judgment in the court below for the appellee, Henrietta Moore, from which this appeal is prosecuted.
It was argued that the policy had not been received by the assured at the time of the death of the deceased, and that the deceased was not in good health at the time of the delivery of the policy, but was dead. It will be noted from the application that the premium was paid prior to the first of February, and that it called for a policy to be effective on February first. The policy, therefore, was in effect at the earliest period of February first, 1936, and the policy holder was entitled to the benefits under the policy as it existed at that time.
Under our decisions, a day begins at midnight and ends the following midnight. The policy and the application did not fix any hour within this day at which the policy would be effective, and consequently it took effect at the earliest moment of February first. See O'Quinn v. State, 131 Miss. 511, 95 So. 513; Pannell v. Glidewell, 146 Miss. 565, 111 So. 571.
While it appears that the deceased, Charlie Curtis or Wortham was killed on February 1st, the earliest time shown by the record was when his body reached the funeral home in the early morning of the first, around seven o'clock. His death was not caused by disease, but by a gunshot wound, and it must be assumed that it occurred subsequent to the first hour of the day, and it is probable that the gunshot wound produced sudden and instant death.
In construing contracts it is a familiar rule to give such construction as will make the policy effective. Under the application, the Funeral Benefit Association was bound, as stated above, at the beginning of the day of February first. The fact that the policy was not actually received by Rasmus Curtis on February first is immaterial. The policy, by the terms of the certificate, was to be effective on February first, and was actually issued and put in the mail, and under its terms became effective on February first — that is to say, at the beginning of that day, which was the hour of midnight.
The argument that the deceased was not in good health when the policy was delivered is without merit. There is no showing that the representations as to the health of the members of the family were false, and it was clearly contemplated that, in referring to health, it was in relation to disease, and not to sudden death by extraneous agencies.
We think the judgment of the court below was correct, and the judgment is affirmed.
Affirmed.
As shown by the opinion rendered on a former day in this cause, the appellant collected the first premium under an application for a burial benefit contract which provided that the same should be in full force and effect on the 1st day of February, 1936, and the receipt for such premium given by the agent specified that the payment was to cover the first month's dues. That is to say, the premium covered the period of one month beginning at midnight of January 31, 1936.
The case was tried on an agreed statement of facts, and the application, receipt and the policy contract were introduced as exhibits thereto. The policy bears date of February 1st, but the record is silent as to the day or hour when it was placed in the mail. It appears from the application, wherein the occupation and address of the applicant is given, that the assured lived at Vaiden, and that the home office of the company is at Grenada. The application states that the assured is a farmer, and we assume that he lived out from Vaiden, since it would be unusual for a colored farmer to live in town. Since the application covered two other members of the applicant's family, including Charlie Wortham, alias Charlie Curtis, whose body was shown to have been in the undertaker's establishment as early as 7 o'clock on the morning of February 1st after he had been shot and killed on the same morning, there was a recital in the agreed statement of facts in reference to the delivery of the policy to the applicant and to the effect that "it was not delivered until after the burial through the mail to him." We are unable to determine from the entire agreed statement of facts whether the above quoted statement means that the policy was not placed in the mail at Grenada until after the death and burial of Charlie Curtis, or whether this language means that it was not received by the applicant out of the mail at Vaiden until after such death and burial. From the entire record, we are of the opinion that the statement is subject to the latter meaning. At any rate, since the policy sued on shows on its face that it should be so construed as to take effect at the earliest moment of February 1st, and it appeared that Charlie Curtis came to his death between that time and 7 o'clock in the morning, we think that the burden was on the appellant to establish as an affirmative defense that the policy was not actually placed in the mail until after his death. For aught that appears from this record, the policy may have been filled out, signed and placed in the mail on the day before, even if it be true, as argued by appellant, that the company had all of the entire day of February 1st to issue the same. The fact as to when the policy was actually placed in the mail was presumably within the knowledge of the appellant, and this fact should have been clearly recited in the agreed statement of facts or established by the proof.
For the reasons above stated, we have reached the conclusion that the judgment of the court below was correct without reference to the ground on which the former opinion rests, and that therefore the suggestion of error should be overruled.
Suggestion of error overruled.