Penn Mutual Life Ins. Co. v. Keeton

• Decision Date: 14 June 1909
• Docket Number: 13,824
• Citation: 49 So. 736,95 Miss. 708
• Court: Mississippi Supreme Court
• Parties: PENN MUTUAL LIFE INSURANCE COMPANY v. DAISEY KEETON ET AL

49 So. 736

95 Miss. 708

PENN MUTUAL LIFE INSURANCE COMPANY v. DAISEY KEETON ET AL

No. 13,824

Supreme Court of Mississippi

June 14, 1909

FROM the circuit court of Pearl River county, HON. WILLIAM H COOK, Judge.

Mrs Keeton and others, appellees, were plaintiffs in the court below; the insurance company, appellant, was defendant there. From a judgment by default in plaintiffs' favor the defendant appealed to the supreme court. The facts are stated in the opinion of the court.

Reversed and remanded.

Alexander & Alexander, for appellant.

The declaration, taking all its averments as true, is not sufficient to sustain a judgment by default.

It is well settled that a judgment by default will be reversed if the allegations of the declaration are not sufficient to authorize a recovery. This is true not only of declarations at law but of bills in equity. The default merely admits the truth of the matter which is well pleaded in the declaration or bill. Bradstreet v. Jackson, 81 Miss. 233, 32 So 999.

This has been so often held in regard to decrees pro confesso, and final decrees based on them, that we do not cite any further authorities. The general principle is cited in 23 Cyc. 740. The declaration in this case, admitting every averment to be true, did not entitle to any judgment for any amount. The policy itself is filed with the declaration and is part thereof. The policy is to be construed as any other contract for the payment of money. It promised to pay a certain fixed amount and certain other amounts to be ascertained on the condition clearly expressed. This condition was not the death of the insured, but "upon receipt of satisfactory proof of insured." Not only does the policy contain this condition precedent to liability, but the declaration states that "the defendant undertook and faithfully promised to pay to the plaintiff for herself and her said minor children upon the proof of the death of the insured being furnished said defendant within six months after death by the said plaintiff the sum of $ 6,000.00," etc. The failure to furnish proof of death was not a breach of a condition, nor a cause of forfeiture of the policy which had to be pleaded by the defendant; it was that which gave rise to the cause of action. The making of proof of death was not a thing which can be presumed. To a demand upon the company after the death it would have had a perfect right to answer, that there was no liability unless proof be adduced, as required, of the death. The death itself of insured did not give rise to the cause of action. The six years statute of limitations on the policy did not begin from the date of the death. By the terms of the contract the cause of action accrued, and the statute began to run from the making of the proofs of death. We will not discuss this further, however, as we do not think this proposition will be controverted.

The declaration nowhere alleges that any proofs of death were ever made or furnished the defendant. It is wholly silent on the subject. The only reference to the proofs is the clear statement that the undertaking of defendant was to pay upon the proof of death of the insured. The declaration merely alleges the death, and that by reason of the death an action accrued to plaintiffs. For aught that appears in the declaration the six months after death expired without any proof of death having been made or furnished. 25 Cyc. 918; Stevenson v. Bankers, etc., Ass'n, 108 Iowa 637.

If it be contended that the bringing of an action before proofs of death are made would be merely suing before the maturity of a debt, the answer is that a judgment by default in such a case would be erroneous and reversible. Our court has held that a judgment by default where the declaration itself shows a debt was not due would be reversed on appeal. Terry v Curd, 66 Miss. 394, 6 South 229.

Shivers & Shivers, for appellees.

Appellant says that, it is well settled by the judgment by default will be reversed if the allegations of the declarations are not sufficient to authorize a recovery, . . . The default merely admits the truth of the matters which are well pleaded in the declaration or bill, and cites Bradstreet v. Jackson, 81 Miss. 233, 32 So. 999, to sustain this position. This was a suit by the city of Jackson against the Bradstreet Company to enforce the recovery of a privilege license tax on it as a commercial agency, for the years 1892 and 1893: case decided in 1892, decisions say that there was no element of contract in this clause, and the law taxing such agencies had been repealed in 1896 without any saving clause, therefore the case does not support the judgment by default. This does not sustain the contention. Appellant then says that, the "general principle is cited in 23 Cyc. 740, which in substance is the same as his opinion supra; but the authorities quoted in the note to 23 Cyc. 740, from Mississippi are Merritt v. White, 37 Miss. 438, and Smith v. Gardner Hardware Co., 83 Miss. 652, 36 So. 9. The case of Smith v. Merritt was decided by the court on the grounds, (1) that the return of the writ of "executed" was insufficient, and (2) that the declaration was not filed when the suit commenced. In the case of Smith v. Gardner Hardware Co., which was a petition to enforce a mechanics' lien for certain material furnished the contractor, which failed to state that the owner was personally liable for the goods, or that at the date plaintiff gave him notice of him having furnished goods to the contractor, the owner was indebted to contractor in any sum. Smith appeared and filed his answer denying any indebtedness to the contractor at the time notice was served on him, and denying all the material allegations of the declaration, case continued at request of plaintiff, at subsequent term of the court judgment by default was rendered against Smith, no disposition having been made of his answer, judgment declared void. The authorities cited by appellant do not support his theory as to what will avoid a judgment by default in the face of the statutes of this state, and of those statutes heretofore promulgated by this court.

The Mississippi statute of jeofails (Code 1906, § 808) provides that, "A judgment shall not be stayed or reversed after verdict for any defect in the writ, or for a variance in the writ...