Mutual Ben. Health & Accident Ass'n v. Caver

• Decision Date: 05 March 1934
• Docket Number: 31096 I/2
• Citation: 169 Miss. 554,152 So. 897
• Parties: MUTUAL BEN. HEALTH & ACCIDENT ASS'N v. CAVER
• Court: Mississippi Supreme Court

152 So. 897

169 Miss. 554

MUTUAL BEN. HEALTH & ACCIDENT ASS'N v. CAVER

No. 31096 I/2

Supreme Court of Mississippi

March 5, 1934

Division B

Suggestion Of Error Overruled April 16, 1934.

APPEAL from circuit court of Prentiss county, HON. THOS. H JOHNSTON, Judge.

Suit by Tandy L. Caver against the Mutual Benefit Health & Accident Association. Judgment for the plaintiff, and the defendant appeals. Judgment reversed, and the suit dismissed.

Reversed and dismissed.

Watkins & Eager, of Jackson, for appellant.

Where a contract ends at a definite time no renewal thereof can be had without consent of both parties thereto.

37 C J. 408; 1 C. J. 409; Fidelity & Casualty Company v. Gorman, 38 F.2d 590; Ericks v. Fidelity & Casualty Company, 253 S.W. 1029; Matthew v. Cont. Cas. Co., 93 S.W. 55; Upton v. Travelers' Insurance Company, 178 P. 851; MacArthur v. U. S. Health & Accident Insurance Company, 151 Ill.App. 507; United States Fidelity & Guaranty Company v. Williams, 49 So. 742, 96 Miss. 10; Penn Mutual Life Ins. Co. v. Mrs. Daisy Keeton, 49 So. 736; Danvers Savings Bank v. National Surety Company, 166 F. 671.

It is not the province of a court of equity to make contracts for the parties nor to modify such as may have been voluntarily entered into merely because the carrying out of their terms may ultimately result in grave injustice to one or the other of the parties thereto.

Phillips v. McIlrath et al., 217 N.W. 420; Amick v. Huky, 235 N.W. 847; Fairey v. Strange, 98 S.E. 135.

There is no law restricting the right of all persons to make contracts to suit themselves, when the contract violates no law.

Butterfield Lbr. Co. v. Guy, 92 Miss. 361, 45 So. 78, 15 L. R. A. (N. S.) 1121.

From a careful examination of the record in this case the facts show conclusively that the contract of insurance had been completely consummated on and prior to May 21, 1929.

On the broad proposition of whether or not the contract in the case at bar had been accepted by the appellee in this case on May 21, 1929, we respectfully submit that the letter which he wrote to the company is within itself sufficient evidence to show clearly that the appellee himself considered the contract fully consummated.

The courts have universally held that an acceptance even though coupled with a request for modification is nevertheless an absolute and unconditional acceptance.

Turner v. McCormick, 67 L. R. A. 853; 9 Cyc. 269; Culton v. Gilchrist, 92 Iowa 718, 61 N.W. 384; Phillips v. Moor, 71 Me. 78; J. B. Davis v. Home Insurance Company, 155 S.W. 131.

Throughout all the years that the statute, section 5196, Code of 1930, has been in force in Mississippi, it has never been construed in a manner so as to enlarge the powers of any agent.

Moses v. State, 65 Miss. 56; Cain v. State, 60 So. 731, 103 Miss. 701; London, Liverpool & Globe Ins. Co. et al. v. Sorsby, 60 Miss. 302; New York Life Insurance Co. v. Odom, 100 Miss. 219, 56 So. 379; Germania Life Ins. Co. v. Bouldin, 100 Miss. 660, 56 So. 609; Interstate Fire Ins. Co. v. Nelson, 62 So. 425, 105 Miss. 437; Miss. Electric Co. v. Hartford Fire Ins. Co., 63 F. 231, 105 Miss. 767; Continental Casualty Co. v. Hall, 118 Miss. 871, 80 So. 335; New York Life Ins. Co. v. Smith, 129 Miss. 544, 91 So. 456; Mutual Life Ins. Co. v. Hebron, 146 So. 445, 166 Miss. 145; American Bankers Ins. Co. v. Lee, 134 So. 836, 161 Miss. 85.

E. C. Sharp, of Jackson, for appellee.

The policy contained no provision whatever for a cancellation of the policy at any time during which the premiums were paid, and could not be cancelled under the terms thereof at any time for which the premium had been paid in advance.

As a general rule, a rider or slip attached to a policy or certificate of insurance is, prima facie at least, a part of the contract to the same extent, and with like effect, as if actually embodied therein.

1 Couch's Cyc. of Insurance Law 310, sec. 159; Corporation of Roman Catholic Church v. Royal Ins. Co., 158 La. 601, 104 So. 383; 1 Couch on Insurance, secs. 188 and 188a.

In the construction of any statute, constitutional provision, or contract, it is the duty of the court to so construe it that each and every part of the contract, statute, or constitutional provision shall be given effect, and to apply this rule to the case at bar is to sustain the contention of appellee.

If the rider had not been attached under the general provisions of the policy the contract could have been cancelled at the expiration of any premium-paying period, and the court would have doubtless so construed, but, When the rider in question was attached to and became a part of this policy, it superseded the policy provisions providing for the cancellation thereof at the expiration of any period for which the premium has been paid, for it superseded those provisions of the policy, and it was the obvious intention of the parties that the provisions of the rider should be substituted for the other conditions, exceptions and provisos of the policy for the reason that they were inconsistent and irreconcilable with the terms of the policy, and to apply the rule stated in Couch's Cyc. of Insurance Law, supra, to this rider, is to sustain the contention of the appellee.

A contract of insurance couched in language chosen by the insurer is, if open to the construction contended for by the insured, to be construed most strongly, or strictly against the insurer, and liberally in favor of the contention of the insured, which means in accordance with the rule contra perferentem.

1 Couch's Cyc. of Insurance Law, sec. 188.

A tender does not have to be made where it is made clear beforehand that if made it would be rejected.

Union Central Life Ins. Co. v. Caldwell, 68 Ark. 505; Manhattan Life Ins. Co. v. Smith, 44 Ohio St. 170; 3 Couch Cyc. of Insurance Law, sec. 637, page 2052; Newton v. National Life Ins. Co., 108 So. 769; Sanders v. Independent National Life, 133 So. 451; American National Ins. Co. v. Mooney, 111 Ark. 514; 6 Couch Cyc. of Insurance Law, sec. 1429.

It is contended by appellant that it had a right to cancel this policy on June first, or rather, to refuse to renew, although there were considerable benefits due to appellee under the terms of the policy. This contention is in direct conflict with the decision in the case of Benefit Association of Railway Employees v. Bray, 147 So. 640.

There is a general rule that an insurance policy cannot be cancelled by the insurance carrier for nonpayment of premium when it has a credit to the insured of an amount equal to such premium otherwise unappropriated by the insured.

Equitable Life Insurance Society v. Roberts, 145 So. 157; National Life Ins. Co. v. Sparrow, 151 Miss. 387, 118 So. 195; Mutual Life Ins. Co. v. Breland, 117 Miss. 429, 78 So. 362, L. R. A. 1918D 1009; 33 C. J. 309, sec. 548.

In this case, at the time the premium became due on June 1, 1932, the appellant had in its possession more than enough to pay the premiums on this policy for two full years, and although it was indebted to appellee for more than two years' premiums, appellee tendered to it the premium due June 1, 1932.

Insurance Company v. Breland, 117 Miss. 479, 78 So. 362; Girard Life Ins. Co. v. Mutual Life Ins. Co., 97 Pa. 15; North American Accident Ins. Co. v. Bowen, 102 S.W. 163; Smith v. St. Louis Mutual Life Ins. Co., 2 Tenn. Ch. 727; Union Central Life Ins. Co. v. Caldwell, 68 Ark. 505, 68 S.W. 355.

Assuming that the statutory provision controls, it necessarily follows that any act done by the statutory agent, or knowledge obtained by him while doing such an act, which is necessary or proper to the fulfilling of the agency, is the act or knowledge of the company, and binding upon it, so that it cannot disclaim his agency in the doing of anything necessarily implied in the carrying out of the specific acts authorized. Likewise, such an agent's declarations, as such, are admissible evidence against the company, provided the statute does not also provide that the company shall not be bound by any statement or declaration of such an agent not contained in the application, for, if it does so provide, the company is exempt from any obligations arising from any oral statements made by the agent, and not incorporated in the application itself.

2 Couch's Cyc. of Insurance Law, sec. 492, sec. 509-g "General Managers;" St. Paul Fire & Marine Ins. Co. v. Loving, 163 Miss. 114, 140 So. 727; Cain v. State, 103 Miss. 701, 60 So. 731; Fidelity & Casualty Co. v. Cross, 131 Miss. 632, 95 So....