McKee v. Continental Ins. Co.

• Decision Date: 09 December 1950
• Parties: McKEE v. CONTINENTAL INS. CO. 27 Beeler 413, 191 Tenn. 413, 234 S.W.2d 830, 22 A.L.R.2d 980
• Court: Tennessee Supreme Court

Page 830

234 S.W.2d 830

McKEE v. CONTINENTAL INS. CO.

27 Beeler 413, 191 Tenn. 413, 234 S.W.2d 830, 22 A.L.R.2d 980

Supreme Court of Tennessee.

Dec. 9, 1950.

Wood, Dietzen & Parks, Chattanooga, for plaintiff in error.

Kefauver, Duggan & Miller, Chattanooga, for defendant in error.

BURNETT, Justice.

On February 14, 1948, John C. McKee purchased a Chevrolet automobile from the Burnett Motor Company. On the same day the motor company either assigned or transferred the unpaid obligation of McKee on said car to the Manufacturers Acceptance Corporation. On the same day a policy of insurance in the defendant Insurance Company was issued. This policy provided on its face that the named insured was the Manufacturers Acceptance Corporation and that the purchaser or borrower was John C. McKee. The policy also provided that:

'Item 2. Policy Period: From Feb. 14 '48 to May 14 '49, 12:01 A.M., standard time at the address of the insured as stated herein.'

On the first page of this policy it also appears that there was an encumbrance due on said automobile by McKee of $615.00 dollars which was payable in 15 installments of $41.00 dollars each, the last installment being due May, 1949. At the bottom of the page and before any signature other than printed or typewritten appears the following:

'This certificate shall not be valid unless countersigned by a duly authorized agent of the company.' Then follows the counter signature which is dated February 20, 1948.

On May 17, 1949, an accident occurred in which the automobile in question was involved and amounted to a loss of $575.00 dollars.

The sole question for our determination is whether or not the policy was in effect on the date of the accident.

The contention as made by able counsel for McKee is that regardless of the fact that the policy contained the expressed stipulation that it expired on May 14, 1949, it was nevertheless in effect on May 17, 1949, because the policy also contained a provision that it was not valid unless countersigned by a duly authorized agent of the company, and that the policy was actually countersigned on February 20, 1948, 6 days after the beginning date of the policy as stated above. This contention is based upon the fact that these two periods, the beginning and ending date of the policy show that the insurance was to run for 15 months and that the beginning time of this must start on the day of the countersigning and not at the time stated for it to begin in the face of the policy.

In Dillon v. General Exchange Ins. Corp., Tex.Civ.App.1933, 60 S.W.2d 331, that court in answering the identical contention as here made under an almost identical state of facts said:

'We do not agree with this contention. The insurance company had a lawful right to make this policy effective from a prior date, regardless of the provision that same was not valid unless countersigned by the agent designated. This stipulation had to do with the authenticity of the policy rather than the time from which it should become effective. The policy did not provide that it was not valid until countersigned, but unless countersigned. Until might be construed as referring to time, but unless does not refer to time.' (Emphasis ours.) Citing authorities

We agree fully with the statement last above quoted as likewise applicable to the state of facts here under consideration.

Much stress is laid on the fact that under the interpretation which we think is correct the insured had no protection between the date of the policy and the date that it was countersigned, and, therefore, paid for something which he did not get. This might be true and probably is true if the Insurance Company had never countersigned the policy but we do not have this question before us. It seems to us that these considerations are beside the point. Courts cannot make contracts for parties. They can only enforce the contract which the parties themselves have made. In this case the parties clearly contracted that the contract period was to begin on February 14, 1948, and end on May 14, 1949. Obviously this form of policy was furnished the Manufacturers Acceptance Corporation either by the Insurance Company or was printed by the Acceptance Corporation for their use in making loans, as the name of the Acceptance Corporation is printed on the face of the policy as the named insured and that of the plaintiff here is typed in the policy as the purchaser or borrower. It is also gathered from reading this policy that there is a master policy with the Insurance Company and the insured (Manufacturers Acceptance Corporation) and they have in...