Mississippi Ben. Ass'n v. Brooks

• Court: Mississippi Supreme Court
• Writing for the Court: Ethridge, P. J.
• Citation: Mississippi Ben. Ass'n v. Brooks, 185 So. 569, 184 Miss. 451 (Miss. 1939)
• Decision Date: 30 January 1939
• Docket Number: 33515
• Parties: MISSISSIPPI BEN. ASS'N et al. v. BROOKS

185 So. 569

184 Miss. 451

MISSISSIPPI BEN. ASS'N et al. v. BROOKS

No. 33515

Supreme Court of Mississippi, Division B

January 30, 1939

January 16, 1939

APPEAL from the circuit court of Grenada county HON. JNO. F. ALLEN Judge.

Action by Henrietta Brooks against the Mississippi Benefit Association and others on a policy or certificate contracting for a funeral in amount of $ 125. Judgment for plaintiff, and defendants appeal. Affirmed.

On suggestion of error. Suggestion of error overruled.

Affirmed. Suggestion of error overruled.

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. 86; 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. E.d. 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...