Hartford Accident & Indeminity Co. v. Delta & Pine Land Co
| Decision Date | 29 April 1940 |
| Docket Number | 33674 |
| Citation | 195 So. 667,189 Miss. 496 |
| Parties | HARTFORD ACCIDENT & INDEMINITY CO. v. DELTA & PINE LAND CO |
| Court | Mississippi Supreme Court |
APPEAL from the circuit court of Bolivar county HON. WM. A. ALCORN JR., Judge.
Action by the Delta & Pine Land Company against the Hartford Accident & Indemnity Company, to recover on fidelity bond. From a judgment for plaintiff, defendant appeals. Affirmed.
Former opinion 188 So. 539, withdrawn, not reported in State reports.
Affirmed.
Shands Elmore, Hallam & Causey, of Cleveland, and Wm. M. & Wm. G Hall, of Memphis, Tenn., for appellant, on Suggestion of Error.
The Supreme Court of the United States settled the question that appellee is now raising, against that contention, and its decision is the law of the case and binding upon this court right or wrong.
That court remanded the cause to this court and this court remanded it to the circuit court for further proceedings not inconsistent with its decision, and the subject matter of appellee's fourth replication was inconsistent therewith and was of no effect and was to be disregarded.
The character of the fifteen months' provision was put in issue, and the court's determination was that it was a condition to liability.
The demurrer admitted that the contract provided that any claim thereunder must be made upon appellant within fifteen months after the termination of the contract but challenged, because it was a matter of law, a legal conclusion, the correctness of the implied contruction of that provision as a condition to liability.
The construction of the contract and the fifteen months' provision of the contract to determine whether that provision was a condition precedent to liability, was the vital proposition in the case and the demurrer submitted it to the courts for determination.
In Guthrie v. Indemnity Association, 101 Tenn. 643, the suit was upon a life insurance policy, containing a suit limitation, and the question arose whether the contract limitation barred an action brought after the lapse of that time but which had been brought within one year after a voluntary non-suiting of a former suit upon the contract, in view of the statute in Tennessee, extending the time in such cases, and the Tennessee Supreme Court, following Riddlesbarger v. Hartford Ins. Co., 74 U.S. 386, 19 L.Ed. 257, held that it was "lawful" to make such limitations in contracts and that such limitations were not affected by such statutes.
Card v. Corn. Casualty Ins. Co., 20 Tenn. A. 132, 95 S.W.2d 1281; Phoenix Cotton Oil Co. v. Royal Ind. Co., 140 Tenn. 438.
It is not essential that there should be any provision for forfeiture in order to give effect to a condition precedent.
Phoenix Cotton Oil Co. v. Royal Ind. Co., 140 Tenn. 438.
The contract in the case of Phoenix Oil Co. v. Royal Ind. Co., supra, expressly made the provision for notice a condition precedent and the contract in the case at bar does not so make its fifteen months' provision a condition precedent but no words are necessary to make a provision a condition precedent where its place in the undertaking makes it one, which is the case with the fifteen months' provision in the contract here.
No particular form of words is necessary in order to create an express condition. Whether a promise is expressly conditional, and if so what is the nature of the condition, depend upon interpretation.
Restatement of Law of Contracts, sec. 258; Mass. Mut. Life Ins. Co. v. England, 171 Tenn. 104, 108; Bristol v. Bostwick, 146 Tenn. 205.
The case of Ins. Co. v. Whitaker, 112 Tenn. 151, had been decided before the suit at bar was brought and was a case to be considered upon the question here, but it would have been no authority for holding that the fifteen months' provision in the contract in the case at bar without a forfeiture clause was no condition precedent to liability. The undertaking there was to insure against loss or damage by fire, and the liability arose when the fire occurred and caused the loss or damage and the requirement for proof of loss within sixty days was a condition subsequent which would not have the effect of a, condition precedent unless it was expressly so declared or non-compliance therewith was expressly declared to constitute a forfeiture.
The undertaking in the case at bar was not that at all and the fifteen months' provision therein was not a condition subsequent but a condition precedent in the nature of its place and purpose in the undertaking and therefore did not require a forfeiture clause to make compliance necessary, as held in the Phoenix Cotton Oil Company case. Nor are there in the contract in the case at bar other provisions that provided that non-compliance would forfeit the obligee's rights, thereby implying that non-compliance with the provision without such forfeiture clause would not bar the insured of his action, as there was in the Whitaker case.
All idea that the Supreme Court of Tennessee meant to lay down as a rule that all conditions in insurance and indemnity contracts must expressly provide that noncompliance would bar the insured or indemnitee of his right to maintain an action and have a recovery, is negatived by that court in Mass. Mut. Life Ins. Co. v. England, 171 Tenn. 104, 108.
While we have shown that there was nothing in the cases cited by appellee's counsel to have made it erroneous to construe the fifteen months' provision in the contract in this case as a condition precedent to liability because it was not expressly declared to be such nor that non-compliance would forfeit appellee's rights, we feel that we have done a useless task, for if the Supreme Court of the United States has construed the fifteen months' provision as a condition to liability, --a condition precedent, that settles the question, whether it took the proper view of the Tennessee decisions or not, and its decision, right or wrong, is the law of the case, binding upon this court as it was upon the circuit court.
The question is whether the Supreme Court of the United States had before it for construction the fifteen months' provision and how it construed that provision.
Taking up Hartford Accident & Indemnity Co. v. Delta & Pine Land Co., 292 U.S. 143, 78 L.Ed. 1178, we find that the Supreme Court of the United States held, in effect, that section 5131, Code 1930, because of the interest in Mississippi, did not make the contract a Mississippi contract and the fifteen months' provision construable as a limitation of action upon the contract and one that was void under section 2292, Code 1930; and that the contract remained a Tennessee contract and the fifteen months' provision which was a condition to liability and valid under the laws of Tennessee was of importance to appellant and appellant was protected therein in the courts of Mississippi by the due process clause of the fourteenth amendment to the Constitution of the United States.
The Supreme Court of the United States in reversing the judgment of this court affirming that of the circuit court, after thus expressly declaring its view of the construction of the fifteen months' provision as a condition to pay, going to the obligation of the contract, therefore a condition to liability, adjudged in effect that the noncompliance with the fifteen months' provision set up in the plea was a good defense and would entitle appellant to judgment, if confessed as a fact, or if proved, under denial, upon further proceedings in the lower courts.
The law of the case was thus settled. In consequence, upon the remand, the questions that could be made were as to the truth of the facts upon which the proposition of law so determined, were predicated.
Appellee, however, set up in a final replication, which was fourth, in substance and effect, that the fifteen months' provision was not a condition precedent because the contract did not ill words declare it to be a condition precedent, nor that non-compliance with that provision would forfeit appellee's rights under the contract and thereby make it a condition precedent.
The matters set up in that replication were not new facts in avoidance of the conclusion about the fifteen months' provision which the supreme court had sustained.
That was not permissible upon the remand because it was not consistent with the United States Supreme Court's decision, and was therefore of no effect and to be disregarded.
Chaffin v. Taylor, 116 U.S. 567, 29 L.Ed. 727; Smith v. Elder, 22 Miss. (14 S. & M.) 100, 105.
Sillers & Roberts, of Rosedale, and Green, Green & Jackson, of Jackson, for appellee on Suggestion of Error.
The court erred in holding that the failure of the plaintiff to comply with the provision in the contract of insurance reading, "any claim hereunder must be duly made upon the surety within fifteen months after the termination of the suretyship for the defaulting employee" . . . forfeited plaintiff's rights under the contract, because compliance with said provision was not made a condition precedent to liability on the contract of insurance, and the contract did not provide for a forfeiture in the event of the failure of plaintiff to comply with said provision.
Fidelity & Deposit Co. v. Merchants & Marine Bank, 151 So. 373, 154 So. 260, 169 Miss. 755; Am. Nat. Ins. Co. v. Waters, 96 So. 739, 133 Miss. 28; Employer's Liability Assurance Corp. v. Jones County Lbr. Co., 72 So. 152, 111 Miss. 759; Elberton Cotton Mills v. Indemnity Ins. Co., 108 Conn. 707, 145 A. 33, 62 A. L. R. 926; 5 Joyce, Ins., sec. 3282; 33 C. J., sec. 661.
The court has held that the contract involved in this case is a Tennessee contract. It is therefore necessary for us to show that under the decisions of the Supreme Court of...
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