Massachusetts Protective Ass'n v. Cranford

• Citation: 137 Miss. 876,102 So. 171
• Decision Date: 15 December 1924
• Docket Number: 24497
• Parties: MASSACHUSETTS PROTECTIVE ASS'N v. CRANFORD. [*]
• Court: United States State Supreme Court of Mississippi

102 So. 171

137 Miss. 876

MASSACHUSETTS PROTECTIVE ASS'N v. CRANFORD. ^[*]

No. 24497

Supreme Court of Mississippi

December 15, 1924

Division A

1 INSURANCE. Conflicting evidence made question one for jury.

Whether insured committed suicide was question for jury, where evidence was conflicting.

2. INSURANCE. Where insurer received timely notice of insured's death, authority of agent to receive notice was immaterial.

Where insurer in fact received timely and ample notice of insured's death from agent, it was immaterial whether agent was general agent authorized to receive notice.

3. INSURANCE. Failure to make proof of loss did not preclude recovery where due to insurer's failure to furnish blanks.

Beneficiary's failure to make proof of loss did not preclude recovery where she was precluded from so doing by insurer's failure to furnish blanks.

4 EVIDENCE. Parol evidence admissible to explain written release.

Parol evidence was admissible to prove that written release containing indorsement that amount received was in full settlement of all claims of liability under policy, was given merely to cover sick indemnity, and not insurer's liability on policy on insured's death.

5. INSURANCE. Certificate issued by bureau of vital statistics, stating that death was "suicidal,"held not admissible.

In action on accident policy involving issue of whether insured committed suicide or met his death accidentally, certificate of death issued by bureau of vital statistic under Hemingway's Code, section 4872, stating that death was "suicidal,"held not admissible, since the certificate should have merely stated that cause of death was gunshot wound.

6. INSURANCE. Rule as to burden of proof on issue of whether insured committed suicide, stated.

In action on accident policy, in which the insurer denied that death was accidental and claimed that insured had committed suicide, the burden was upon plaintiff to prove accident upon the whole case, but insurer had burden of overcoming legal presumption against suicide.

7. EVIDENCE. Presumption against suicide.

Presumption is that a decedent did not commit suicide.

HON. R. S. HALL, Judge.

APPEAL from circuit court of Forrest county, HON. R. S. HALL, Judge.

Action by Mrs. Sallie Cranford against the Massachusetts Protective Association. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Judgment reversed, and case remanded.

Stevens & Heidelburg, for appellant.

This suit was upon a health and accident policy of insurance issued by appellant to and in favor of Daniel W. Cranford, husband of appellee. The policy insured the said Daniel W. Cranford whose occupation was a stock broker or dealer, against loss from: "(1) Bodily injuries effected directly and independently of all other causes by accidental means (excluding self-destruction or any attempt thereat, while sane or insane); and (2) disability from disease." For accidental death the policy provided an indemnity of five thousand dollars in favor of assured's widow, Mrs. Sallie L. Cranford, appellee here.

The policy sued on contained, amongst other standard provisions, the following: "Written notice of injury or of sickness on which claim may be based must be given to the Association within twenty days after the date of the accident causing such injury or within ten days after the commencement of disability from such sickness.

"Such notice given by or in behalf of the insured or beneficiary, as the case may be, to the Association at its Home Office, Worcester, Massachusetts, or to any authorized agent of the Association, with particulars sufficient to identify the insured, shall be deemed to be notice to the Association. Failure to give notice within the time provided in this policy shall not invalidate any claim if it shall be shown not to have been reasonably possible.

"The Association upon receipt of such notice, will furnish to the claimant such forms as are usually furnished by it for filing proofs of loss. If such forms are not so furnished within fifteen days after the receipt of such notice, the claimant shall be deemed to have complied with the requirements of this policy as to proof of loss upon submitting within the time fixed in the policy for filing proofs of loss, written proof covering the occurrence, charter and extent of the loss for which claim is made."

The declaration contained no averment that proofs of loss were furnished in accordance with the requirements. of the policy and no averments of circumstances excusing the plaintiff from furnishing proofs of loss.

We confidently submit that the testimony of the plaintiff at the conclusion of the plaintiff's case in chief, should have been excluded because of the failure of the declaration or allege compliance on the part of the plaintiff with the condition of the policy requiring notice of accidental death and requiring the furnishing of proofs of loss. These provisions of the policy have been quoted hereinabove, and compliance therewith is a contractual condition precedent to the right of the plaintiff to recover.

This court has held that a declaration which fails to allege compliance with a condition of a policy requiring proofs of death or facts excusing compliance, states no cause of action and will not sustain a default judgment. Penn. Mutual Life Ins. Co. v. Keeton, 95 Miss. 708, 49 So. 736, and authorities therein listed and reviewed. The Keeton case just cited is referred to and approved in the case of Odom v. Gulf & Ship Island R. R. Co., 57 So. 626.

The declaration does not allege, neither does the proof show that any proofs of loss whatever were ever furnished appellant in this matter. We are aware of the holdings of this court under section 3127, Code of 1906; Section 2491, Hemingway's Code, in the cases of Assurance Company v. Walker, 99 Miss. 404; Standard Ins. Co. v. Broom, 111 Miss. 409, 71 So. 653; Stuyvesant Ins. Co. v. Smith Motor Sales Co., 99 So. 575, to the effect that all stipulations and contracts changing the period within which suits must be brought under our statutes of limitations shall be null and void.

There may be a difference of opinion as to when this notice must be given, whether within the period expressly and specifically stated in the policy or whether within the period of limitation provided by the statute for all written contracts, and likewise there may be difference of opinion as to the time limited for furnishing proofs of loss. Yet there can be no difference of opinion that notice and proofs must be furnished in accordance with the provisions of the policy, whether within the shorter period limited in the policy or the statutory period, the giving of the notice and the furnishing of the proof unless waived or excused by the conduct of the company, are essential conditions precedent to the beneficiary's right to recover the indemnity provided by the policy.

In this connection we confidently submit that the lower court proceeded upon an erroneous conception of the relation of S. B. Williams, the local collector, to his company, appellant here. Williams was no agent of the company in the sense that he could receive notice of a claim for loss under the policy or in the sense that he could waive any essential provision of the policy. He was merely a local collector clothed with the authority to collect premiums from policyholders in his community. He was certainly not a general officer of the company nor was he such an "authorized agent of the Association" as is contemplated by section 5 of the "Standard Provisions" of the policy. Section 5078, Hemingway's Code; section 2615, Code of 1906, defines who constitutes an agent of an insurance company. The section has been construed in a number of cases. Big Creek Drug Co. v. Stuyvesant Ins. Co., 76 So. 548; Germania Life Ins. Co. v. Bouldin, 56 So. 609; Stewart v. Coleman Co., 81 So. 653; New York Life Ins. Co. v. Odom, 100 Miss. 219, 56 So. 379; 1914-A Ann. Cas.

The court below was in error in holding that Williams was an agent of the appellant and that notice to him was notice to the appellant. The lower court, also, erred in admitting over the objection of appellant evidence to the effect that Mrs. Cranford wrote a latter to appellant after Mr. Cranford's death and after she received the voucher for three hundred fifty dollars, and gave this letter to Williams to mail to appellant. The letter, if such a letter was written was the best evidence and no predicate had been laid to introduce any other evidence of its contents, no notice was given to produce the original, no carbon copy was offered.

We call the court's attention to the case of McPike v. Western Assurance Co., 61 Miss. 37, which is in point upon the proposition that we are urging here, namely, that the provision of the policy with reference to proofs of loss is valid and compliance therewith or a valid excuse for non-compliance therewith essential to recovery.

Did the appellee meet the burden of proof which was on her to show that the death of Mr. Cranford was due to accidental causes, excluding self-destruction or any attempt thereat, while sane or insane? The burden of proof was upon appellee to prove that Mr. Cranford's death was due to accident and was not due to self-destruction or suicide. An introduction of the defense of suicide did not shift the burden. 1 C. J. 496, 498; Belt Automobile Indemnity Association v. Ensley Transfer & Supply Co., 99 So. 787, U. S. Casualty Co. of N.Y. v. Malone, 87 So. 896; Travelers' Protective Association of America v. Malone, 87 So. 986.

All the witnesses admit, and the certificate upon which the claim for health benefits was based, together with the proof of loss made out for the purpose of collecting the health or...