New York Life Ins. Co. v. Boling

• Decision Date: 19 October 1936
• Docket Number: 32085
• Citation: 177 Miss. 172,169 So. 882
• Court: Mississippi Supreme Court
• Parties: NEW YORK LIFE INS. CO. v. BOLING et al

169 So. 882

177 Miss. 172

NEW YORK LIFE INS. CO. v. BOLING et al

No. 32085

Supreme Court of Mississippi

October 19, 1936

Suggestion Of Error Overruled November 30, 1936.

APPEAL from the circuit court of Hinds county HON. DEWITT C. ENOCHS Special Judge.

Action by Mrs. Margaret W. Boling and others against the New York Life Insurance Company. From a judgment in favor of the plaintiffs, the defendant appeals. Affirmed.

Affirmed.

Louis H. Cooke, General Counsel for New York Life Ins. Co., of New York, and Watkins & Eager, of Jackson, for appellant.

Under the express, unambiguous provisions of the policy sued upon on default in payment of a premium only the cash surrender value of the policy, that is to say the reserve under the policy less a surrender charge, after deducting any indebtedness on the policy, was available for the purchase of temporary extended insurance.

Payne v. Minnesota Mutual Life Ins. Co., 191 S.W. 695, 195 Mo.App 512; Berry v. Lamar Life Ins. Co., 142 So. 445, 165 Miss. 405; 13 C. J., pp. 532, 561, 770-771; 22 C. J., Evidence, p. 1203; 32 C. J. 1159; Couch on Insurance, p. 363; Fuller v. Metropolitan Life Ins. Co., 37 F. 163; Hattiesburg Plumbing Co. v. Carmichael, 31 So. 536, 80 Miss. 66.

This court held the Blaylock policy ambiguous. The present policy is free from ambiguity.

New York Life Ins. Co. v. Blaylock, 144 Miss. 541, 110 So. 432; Lamar Life Ins. Co. v. Minor, 154 So. 542, 170 Miss. 223.

The authorities are unanimous that, under policies containing the same or substantially the same provisions as are found in the policy contract sued on, the insured, upon default in the policy, is only entitled to such extended insurance as the cash surrender value, to-wit, the hypothetical reserve less the surrender charge, will purchase.

Williams v. Union Central Life Ins. Co., 291 U.S. 169, 78 L.Ed. 711; Carter v. Mutual Benefit Life Ins. Co., 161 So. 446; Erickson v. Equitable Life, 258 N.W. 736; Intersouthern Life Ins. Co. v. Zerrell, 58 F.2d 135; Bene v. New York Life Ins. Co., 87 S.W.2d 979; Moss v. Aetna Life Ins. Co., 73 F.2d 339; Atlantic Life Ins. Co. v. Pharr, 59 F.2d 1025; Darby v. Equitable Life Assur. Society, 79 So. 329; Neal v. Columbian Mutual Life Ins. Society, 138 So. 353, 161 Miss. 814; Fidelity Mut. Ins. Co. v. Oliver, 71 So. 302, 111 Miss. 133; New York Life Ins. Co. v. Ware, 171 Miss. 341, 157 So. 359.

To hold that appellant could not deduct a surrender charge under one option but could under another would cause the policy to violate section 5171, Miss. 1930 Code.

Section 5171, Mississippi 1930 Code; Jancey v. Batesville Tel. Co., 11 Ann. Cas. 135; Neal v. Columbian Mut. Life Ins. Society, 138 So. 353, 161 Miss. 814; Metropolitan Life Ins. Co. v. Lillard, 248 P. 841.

The New York statute should certainly be persuasive.

Section 88, New York Law; Lavender v. Volunteer State Life Ins. Co., 157 So. 101, 171 Miss. 169.

The right of the insured to participate in the appellant's reserve must be determined by the laws of the State of New York. The judgment of the court below, appealed from in this case, was in contravention of the laws of the State of New York and therefore violated Section 1, Article IV of the Constitution of the United States known as the Full Faith and Credit Clause thereof.

Section 1, Article IV, Constitution of the United States; Supreme Council v. Green, 59 L.Ed. 1089, 237 U.S. 531, L.R.A. 1916A, 771; Modern Woodmen of America v. Mizer, 69 L.Ed. 783, 267 U.S. 544, 41 A.L.R. 1384; Equitable Life Assurance Society v. Weil, 103 Miss. 186, 60 So. 133.

Dividends payable under the policy were not proportionable but were only apportionable or payable annually upon the anniversary date, provided the policy was then in force.

Empire Life Ins. Co. v. Wier, 68 S.E. 1035; Mutual Fire Ins. Co. v. Miller Lodge, 58 Md. 463; Mutual Life Ins. Co. v. Girard Life Ins. Co., 100 Pa. 172; Mixon v. Sovereign Camp, 125 So. 314; Atlantic Life Ins. Co. v. Bender, 131 S.E. 806; Pacific Mutual Life Ins. Co. v. Turlington, 125 S.E. 658; McDonald v. Mutual Life Ins. Co., 116 N.Y.S. 35; New York Life Ins. Co. v. English, 72 S.W. 58; Metropolitan Ins. Co. v. Lambert, 157 Miss 759, 128 So. 750; 8 C. J. 411; Guardian v. Richards, Adm., 35 Miss. 540; Lennehay v. Mathews, 20 N.E. 453; Peek v. New York Life Ins. Co., 219 N.W. 487; New York Life Ins. Co. v. Morris, 137 Miss. 101, 102 So. 71; Insurance Co. v. Cameron, 100 Miss. 604.

Even if the dividend should be proportionable, the policy was not in force at the death of the insured for that the dividend, under the terms of the policy, would become a dividend deposit and would increase the amount of extended term insurance.

Williams v. Union Central, 78 L.Ed. 711, 291 U.S. 169; Cason v. Mutual Life, 184 P. 296, 6 A.L.R. 1395.

Under the express, unambiguous provision of the policy here sued upon, on default in payment of a premium only the cash surrender value was available for the purchase of temporary extended insurance.

Lamar Life v. Minor, 154 So. 542; Penn Mutual v. Barnett's Adm., 124 Ky. 266; Prudential Ins. v. Ragan, 212 S.W. 123; Security Life v. Watkins, 224 S.W. 462; Pendleton v. Pan Am. Life, 56 F.2d 935; Kentucky Code, 1915, 1922; 60 C. J. 1182, 1183; Keppel v. Tiffin Savings Bank, 49 L.Ed. 790; Fid. Mut. Life v. Merchants Bank, 71 F.2d 777; 7 R. C. L. 1003; Castleman v. Canal Bank, 171 Miss. 291.

The laws of the state of New York are not only persuasive but are controlling where the question is one of philosophy or equitable right rather than mere construction of the contract itself.

Clark v. Equitable Society, 76 Miss. 22; Supreme Counsel v. Green, 59 L.Ed. 1089.

Appellee was not entitled to any proportionment of any dividend upon default in the payment of a premium at the end of three and three-quarters years.

Green, Hewes & May v. Maryland Cas. Co., 159 So. 101.

A contract providing for an option or election within well defined limits is not void for indefiniteness.

Arthur Delapierre Co. v. Chickasaw Lbr. Co., 71 So. 872, 111 Miss. 607; Phillips v. Cornelius, 28 So 871; James on Option Contracts, sec. 118.

The appellant determined the amount of the surrender charge for each year, beginning with the third, deducted such surrender charge from the reserve under the policy, and stated the amount of cash surrender value in the table of surrender values contained in the policy sued upon.

Appellee's counsel take the position that the values stated in the table of surrender values found in the policy sued upon were minimum values, and seek to apply the rule announced by this court in Lamar Life Ins. Co. v. Minor, 170 Miss. 223, 154 So. 542. The difference between the instant case and the minor case is that in the Minor case, under the peculiar terms of the policy, this court construed the table of guaranteed values to be minimum values; whereas, under the present policy contract, such values are the maximum values to which the insured was entitled. It would do violence to this contract to apply the rule announced in the Minor case to the policy involved in this case. It must be borne in mind that the rule of stare decisis as applied to a previous case is necessarily confined to the facts before the court in that case.

Castleman v. Canal Bank & Trust Co., 171 Miss. 291, 156 So. 648; National Surety Co. v. Miller, 155 Miss. 115, 124 So. 251;15 C. J. 941, par. 332; 7 R. C. L. 1003, 1004; American Freehold Land & Mortgage Co. v. Jefferson, 69 Miss. 770, 12 So. 464, 30 Am. St. Rep. 587.

The following authorities dealing with the policies such as involved in this case hold the contract to be free from ambiguity; the cash surrender value, that is to say, the actual reserve, less st surrender charge, less any indebtedness on the policy, constitutes the cash surrender value for the purchase of extended insurance; and under policies such as the one sued upon, the table of values stated in the policy is final and conclusive as between the parties.

Williams v. Union Central Life Ins. Co., 291 U.S. 169, 78 L.Ed. 711; Carter v. Mutual Benefit Life Ins. Co., 161 So. 446; Erickson v. Equitable Life, 258 N.W. 736; Intersouthern Life Ins. Co. v. Zerrell, 58 F.2d 135; Bene v. New York Life Ins. Co., 87 S.W.2d 979; Moss v. Aetna Life Ins. Co., 73 F.2d 339; Atlantic Life Ins. Co. v. Pharr, 59 F.2d 1025; Darby v. Equitable Life Assur. Society, 79 So. 329; Neal v. Columbian Mutual Life Ins. Soc., 138 So. 353, 161 Miss. 814; Fidelity Mut. Life Ins. Co. v. Oliver, 71 So. 302, 111 Miss. 133; New York Life Ins. Co. v. Ware, 171 Miss. 341, 157 So. 359; Pilot Life Ins. Co. v. Owens, 31 F.2d 862; Palmer v. Central Life Ins. Co., 258 N.W. 732; Devitt v. Mutual Life Ins. Co., 22 A.L.R. 1915, 183.

The assured accepted the policy, and is conclusively presumed to have been acquainted with the terms and provisions thereof, and to have assented thereto.

Maryland Cas. Co. v. Adams, 159 Miss. 88, 131 So. 544; New York Life Ins. Co. v. Odom, 56 So. 379, 100 Miss. 219.

The entire litigation has grown out of appellee's contention that unless the policy was surrendered, there could be no deduction of the surrender charge in fixing the amount available for the purchase of extended insurance. Appellee's counsel have never contended anywhere, at any time, in this law suit, that in arriving at the amount of the cash surrender value to be paid upon surrender of the policy or in arriving at the amount to be used for indorsement for paid up insurance, there was any indefiniteness or uncertainty of any kind in the policy. Upon the other hand, the argument of appellee's counsel has proceeded upon the theory that as to the amount available to be used as cash in taking up the policy or in ascertaining the amount of paid up insurance to be indorsed...