Opinion
No. 36312.
January 27, 1947.
1. INSURANCE.
Although policies are to be construed strongly against insurer, construction must be reasonable, and not a strained or unjust interpretation of the contract.
2. INSURANCE.
Where terms of insurance contract are ambiguous or doubtful, contract must be construed most favorably to insured and against insurer.
3. INSURANCE.
Holland is a "state" within burial policy providing that if insured removed to another state, and insurer is not represented there, policy would become a cash policy in lieu of funeral expenses, where policy did not limit its coverage to member states of the American union.
4. INSURANCE.
A person who was drafted into army at time when he was living with his mother and other members of family and who died in Holland in active combat as a soldier of the United States was "removed" from Mississippi at time of his death within burial policy providing that should insured "remove" to another state where insurer was not represented, policy would become a cash policy in lieu of funeral expenses.
5. INSURANCE.
A burial policy which provided that if insured should remove to another state where insurer was not represented, policy would become a cash policy in lieu of funeral expenses was one of "life insurance" and hence insurer was liable for full amount of policy notwithstanding expense of funeral was defrayed by the United States government because insured died in active combat while a soldier of the United States.
6. INSURANCE.
Where mother continued to pay monthly premiums on family burial policy after minor son was drafted into army, and son's name was never stricken from policy, son was "residing together as member of the family" within coverage of policy at time son died in combat in Holland as a soldier of the United States.
APPEAL from the circuit court of Winston county. HON. JOHN F. ALLEN, J
Livingston Fair, of Louisville, and Cowles Horton, of Grenada, for appellant.
This is purely a family unit contract for burial of the members of the family under the terms and conditions of the contract. It is not a money-making contract nor for insurance in the usual meaning of that term. No money to any beneficiary is ever payable except "in lieu of the funeral expenses" as reimbursement under paragraph 2 of the special provisions. The family unit was the insured thereunder and not the individual members of the family. Niles Majure was not the insured thereunder. It is the duty of the Court to put itself in the situation of the parties when this contract was made in order to ascertain their intent and what they contemplated under the contract.
Hunt v. Gardner, 147 Miss. 374, 382, 112 So. 7.
A construction of the contract which would make it unfair or unjust is to be avoided, but this is just exactly the construction for which the plaintiff contends.
McCain v. Lamar Life Ins. Co., 178 Miss. 459, 474, 172 So. 495.
Although policies are to be construed strongly against insurers the construction must be reasonable and not a strained or unjust interpretation of the contract.
United States Fidelity Guaranty Co. v. Wilson, 184 Miss. 823, 185 So. 802.
Before a burial could be required notice of death had to be given as required by the contract.
Metropolitan Life Ins. Co. v. Lindsey, 184 Miss. 359, 185 So. 573.
There is no ambiguity about this contract and it is, therefore, to be construed like any other contract.
Georgia Casualty Co. v. Cotton Mills Products Co., 159 Miss. 396, 132 So. 73.
If, but only if, "the insured hereunder remove to another state" and defendant "should not be represented there" the contract would become a cash policy "in lieu of the funeral expenses." It is under this provision that suit was brought and under it we maintain that there can be no recovery.
Henry L. Rodgers, of Louisville, for appellee.
Notice was given, and such notice was given as was required by the policy when the policy became a "cash policy" in lieu of funeral expenses.
Clegg v. Johnson, 164 Miss. 198, 143 So. 848; Locomotive Engineers' Mutual Life Accident Ins. Co. v. Meeks, 157 Miss. 97, 127 So. 699; 33 C.J. 32, 33, 34, Sec. 694.
"In lieu of funeral expenses" means "in place of," or "instead of" funeral expenses in the sum of $150.00.
Clegg v. Johnson, supra; Joiner v. Joiner, 117 Miss. 507, 78 So. 369; Mass. Bonding Ins. Co. v. Rutlerford, 218 Cal. 242, 22 P.2d 505; New Amsterdam Cas. Co. v. Squires, 189 Ark. 79, 70 S.W.2d 847; Holt Mfg. Co. v. Brotherton, 81 Wn. 354, 157 P. 849; Irwin v. McDowell (Cal.), 34 P. 708; Segale v. Pagni (Nev.), 244 P. 1010; Lamb v. Milliken, 78 Colo. 565, 243 P. 624.
Where a life insurance policy is ambiguous, any doubt concerning proper meaning of the policy must be construed in favor of the insured.
Praetorians v. McCrary, 191 Miss. 438, 2 So.2d 552; Georgia Casualty Co. v. Cotton Mills Products Co., 159 Miss. 396, 132 So. 73; Shivers v. Farmers' Mutual Fire Ins. Co., 99 Miss. 744, 55 So. 965; New York Life v. Nessossis, 189 Miss. 414, 196 So. 766, 767-769; Mutual Benefit Health Accident Ass'n v. Blaylock, 163 Miss. 567, 143 So. 406; Locomotive Engineers' Mutual Life Accident Co. v. Meeks, supra; Life Casualty Ins. Co. of Tennessee v. Greenlee, 187 Miss. 143, 192 So. 340; Claxton v. Fidelity Guaranty Fire Corp., 179 Miss. 556, 175 So. 210; Murry v. Metropolitan Life Ins. Co., 145 Miss. 266, 110 So. 660; Southern Home Ins. Co. v. Wall, 156 Miss. 865, 127 So. 298; Code of 1942, Sec. 5681.
Niles Majure not only resided together with his family but when he was physically transferred from his domicile an residence, from place to place and state to state, he was certainly "removed" from Mississippi and the word "removal" is no shield by which the appellant may defend this lawsuit since actually the deceased did "remove" from Mississippi.
Clark v. Ingram Lumber Co., 90 Miss. 479, 43 So. 813; Russum v. Gans, 190 Miss. 584, 1 So.2d 235; American Oil Co. v. Booth Lumber Co., 137 Miss. 404, 102 So. 262; Reed v. Lombardi, 44 N.Y.2d 382, 181 Misc. 805; 36 Words Phrases 848.
The deceased died in a state and a state as was contemplated in appellant's protective clause of the contract.
Thomas v. Taylor, 42 Miss. 651, 706; Cherokee Nation v. State of Georgia, 30 U.S. 1, 5 Pet. 1, 8 L.Ed. 25; Spearman v. Mutual Benefit Ass'n, 161 A.L.R. 1297; 40 Words Phrases 6.
This contract is an insurance policy.
Peterson v. Smith, 188 Miss. 659, 196 So. 505.
Niles Majure was "removed" by military orders out of Mississippi and died in a foreign state but his legal residence remained with his family in Winston County, Mississippi, where he resided at the time he was removed by military orders.
Hall v. Hall, 199 Miss. 478, 24 So.2d 347; Smith v. Smith, 194 Miss. 431, 12 So.2d 428; Ex parte Weissinger (Ala.), 22 So.2d 510; Wright v. Bank of Southwestern Georgia, 13 Ga. App. 347, 79 S.E. 184; Muncie Foundry Machine Co. v. Coffee, 66 Ind. App. 405, 117 N.E. 524; 13 Words Phrases 276; 37 Words Phrases 311; 17 Am. Jur. 607, Sec. 29, p. 634, Sec. 73; 129 A.L.R. 1383.
The agreed statement of facts limits this case to "whether or Niles Majure was residing together as a member of the family of Mrs. Jeffie Majure . . . at the time of his death and whether or not the phrase, `removal to another state,' limited the policy to mean `a state of the United States.'" The appellant in its brief agreed that Niles Majure did not change his residence when he went to Holland. This therefore now limits the case to the one phrase under the agreed statement of facts, to-wit "Whether or not removal' to another state limited the policy to mean a state of the United States." In order to so limit this policy, it is necessary to add something to the policy; that is to say, "a state of the United States," and in as much as the writer of any contract has the burden of showing that both parties intended something different from that which is written in a contract, it is apparent that the appellant has failed, especially when it is obvious that the clause was written for the protection of appellant and intended to come into effect whenever one of the insured removed to a place out of the reach of appellant's agents.
Compare Spearman, Admr., v. United Mutual Burial Ass'n, 225 N.C. 185, 33 S.E.2d 895, 161 A.L.R. 1297.
This action originated in the court of a justice of the peace, whence appellant here appealed to the Circuit Court of Winston County, and from an adverse judgement there, it appealed here.
A widowed mother obtained a burial insurance policy from appellant on December 15, 1936 in consideration of the application "and the payment of $1.00 by the head of the family as membership fee and further payments of $1.00 on the 15th day of each month hereafter," (for which) "the Mississippi Benefit Association, upon receipt of notice of the death of any of the following persons residing together as one family," naming them, contracted to furnish a funeral at a cost not exceeding $150. Among the children listed was Nyles Majure, agreed to be the same person as Gordon Niles Majure, deceased, who was twenty years of age at the time of his death, and unmarried.
The record contains an agreed statement of facts to the effect that the above statements are true and in addition, that on September 18, 1944, Niles Majure lost his life in the country of Holland in active combat, as a soldier of the United States, from enemy action; that he was drafted into the army from Winston County, Mississippi, at a time when he was living and residing with his mother and the other members of the family mentioned in the policy as one family; that he removed from Mississippi under military orders; that his death did not occur "in any state of the United States" but that he died in the country of Holland. Notice of the death of the said Niles Majure was given appellant, and it was requested to make the payment of $150 in cash. It was also agreed that the appellant association had no representative in Holland and carried on no business there. There were other matters in the agreed statement of facts of which we need take no notice because of the agreed issues before us.
Both parties agreed that the questions involved were: "Whether or not Niles Majure was residing together as a member of the family of Mrs. Jeffie Majure and the other members mentioned in the policy at the time of his death"; and (2) "whether or not the phrase `removal to another state' limited the policy to mean `a state of the United States.'"
The policy contained this special provision, which is pertinent here: "Should the insured hereunder remove to another state and should the Association be not represented there, then this contract if in full force and effect, will become a `Cash Policy' in lieu of the funeral expenses for `100 per cent' of the amount applicable shown above."
The policy itself offers no definition of "state"; contains no specific limitation to the United States of America or the members thereof; and does not expressly provide that death in a foreign country is not covered by the policy. The first inquiry is, what does the language, "remove to another state," mean.
Appellant cites for our consideration United States Fidelity Guaranty Co. v. Wilson, 184 Miss. 823, 185 So. 802, where we held that althought policies are to be construed strongly against insurer, construction must be reasonable, and not a strained or unjust interpretation of the contract. That is certainly the law. In the construction of this policy, which did not have its meaning made clear when its text was prepared, judicial clarification is necessary. This being true, in our judgment, we must follow another well-recognized rule governing ambiguous insurance contracts, as announced in Georgia Casualty Company v. Cotton Mills Products Co., 159 Miss. 396, 132 So. 73, 75, "where the terms of an insurance contract are ambiguous or doubtful, the contract is to be construed most favorably to the insured, and against the insurer." What is a "state"? In the Cherokee Nation v. State of Georgia, 30 U.S. 1, 5 Pet. 1, 8 L.Ed. 25, the United States Supreme Court, in dealing with a controversy between the Cherokee Indians and the State of Georgia, construing the term "foreign state" in the Federal Constitution, held the Cherokees to be a "state." According to a headnote, "They have been uniformly treated as a state since the settlement of our country. The numerous treaties made with them by the United States recognize them as a people capable of maintaining the relations of peace and war, and of being responsible in their political character for any violations of their engagements, for any aggression committed on the citizens of the United States by any individuals of their community." In O'Connor v. State Tex. Civ. App., 71 S.W. 409, 410, it is said that "a state is `a political community, organized under a distinct government, recognized and conformed to by the people as supreme; a commonwealth; a nation.'"
This Court, in a case involving the issue, whether Mississippi as one of the Confederate States was identical with Mississippi as one of the United States, following the termination of the war between the States, and the effect of the surrender of the Confederacy on "treasury notes" issued by the former, sought to be used to pay taxes to the provisional government of the latter, defined a "state" as: "a body politic, or a society of men, united together to promote their safety and advantage, by means of their union; who are guided and directed by the public political authority — the government. Government is the ligament that holds the political society together, and when that is destroyed, the society as a political body is dissolved." Thomas v. Taylor, 42 Miss. 651, at page 706, 2 Am. Rep. 625.
Since the policy here does not limit its coverage to member states of the American Union, we cannot do so; and since Holland is a state, where Niles Majure died, and where appellant had no representation, the appellant became liable to pay $150 in cash on his death, instead of furnishing the funeral described in the policy. In our judgment, the effect of the verbiage of this policy means that the Association would be liable for the cash payment, if an insured died in any locality under the dominion of an organized government, outside of the State of Mississippi, provided the circumstances otherwise complied with the terms of the insurance contract.
Had Niles Majure removed from Mississippi at the time of his death? We have decided the meaning of "state," supra. "Remove" is defined in Webster's New International Dictionary, 2nd Ed., and one of the definitions is "to change or shift the location, position, station, or residence . . . usually with to and specified place; as, to remove the troops to the front. . . ."; and "remove commonly applies to a change of station or position." This policy does not itself define "removed," or provide that it means the whole family as a unit must remove together. It contains no condition prescribing whether the removal must be voluntary or involuntary. Here, this young man was caused to remove from Mississippi by the United States Government, and he was thus brought within the meaning of "remove" as used in the policy. The provision itself was undoubtedly intended by the appellant Association to save itself the added expense of a funeral in another locality, out of Mississippi, where it had no agents. The fact that the funeral itself would represent only a value of $150 to assured did not mean that the cost and expense to appellant in a remote locality would not exceed that amount. Therefore, under the circumstances of such removal to another state where appellant had no representation, the policy would then become a cash policy for the amount of the cost of the funeral, $150, in lieu of funeral items, such as "casket, hearse, embalming, outside box, and burial garment." The policy is one of life insurance.
Indeed, we have heretofore held that a burial insurance contract constitutes life insurance. Peterson et al. v. Smith, 188 Miss. 659, 196 So. 505. It is so regarded elsewhere, as attested by the numerous authorities from other jurisdictions listed in the case just cited. See also, 44 C.J.S., Insurance, Sec. 27, p. 486. This provision of the policy, converting into a "cash policy," as pointed out supra, and the contract itself constituting life insurance, make it immaterial that no expense was incurred in burying the young soldier by the mother of deceased, and that the expense of the funeral was defrayed by the United States Government. The contract was not one of reimbursement under the conditions, but a "cash policy," — a life insurance policy. In Clegg v. Johnson, 164 Miss. 198, 143 So. 848, 850, we said: "It is wholly immaterial whether appellee went to any expense or not in burying her husband; the association obligated itself absolutely to pay over to her on the death of her husband $150 to cover the expense of the burial."
We think the case of Wright v. Bank of Southwestern Georgia, 13 Ga. App. 347, 79 S.E. 184, 186, disposes, as a matter of law, if any citation be needed, of the question whether or not Niles Majure was residing together with and as a member of his mother's family at the time of his death. It was there said: "The phrase `living together' does not always import that they are living at the same place. The expression merely implies that there has been no separation, voluntary or legal, which can legally be said to have released either from their duties to the other under the strict letter of the law." The mother continued to pay the monthly premiums on the policy; his name was never stricken therefrom; he was still a minor; and his entering the army was by force of the draft. His induction into the army by such means did not change his legal status in his relationship with his family and his continued policy inclusion.
In view of what we have said, supra, it follows that, in our opinion, the coverage of the policy still extended to Niles Majure as of the time of his death, and appellant became liable to pay the "cash policy" of $150 for which this action was brought. The judgment of the trial court was correct, and it is
Affirmed.