Peterson v. Smith
| Decision Date | 03 June 1940 |
| Docket Number | 34190 |
| Citation | 196 So. 505,188 Miss. 659 |
| Court | Mississippi Supreme Court |
| Parties | PETERSON et al. v. SMITH |
APPEAL from the circuit court of Bolivar County, HON. W. A. ALCORN JR., Judge.
Action by Emma Smith against A. Peterson and others on a funeral benefit contract. From a judgment for plaintiff, defendants appeal. Affirmed.
Affirmed.
Eugene Thompson, of Marks, for appellants.
The appellants take the position that the circuit court should have not affirmed the judgment of the justice of the peace court and that this action should have been brought on for trial on the merits in Quitman County, Mississippi, under the application of Section 495 of the Mississippi Code of 1930.
The appellants contend that under the authority of Cain v Simpson, 53 Miss. 521, the justice of the peace should have sustained the motion of the defendants and appellants filed on July 21, 1939. This case is authority for the contention that when a freeholder and householder is sued in a district other than his proper district, and the question of jurisdiction is presented to the court, the court must desist altogether from further cognizance of the suit.
Smith v. Eubank, 89 Miss. 838; Buckley v. Porter, 133 So 215, 160 Miss. 98; McLeod v. Shelton, 42 Miss. 517; Hager v. Coburn, 116 So. 540, 150 Miss. 193; Jefferson Davis County v. Riley, 129 So. 324, 158 Miss. 473; Andrews v. Powell, 41 Miss. 729; Hulburt v. Westbrook, 71 So. 902, 111 Miss. 643; Sec. 2072, Code of 1930; Gibson Paving Co. v. Mills, 49 So. 568, 95 Miss. 726; Cain v. Simpson, 53 Miss. 521.
It is the contention of the appellants that Section 5170 of the Mississippi Code of 1930 has no application here since it cannot be construed, under the terms of the policy sued on that the Marks Burial Association is a life insurance company as defined by the section above mentioned. This section and chapter of the Code in which it is found deal with insurance while Chapter 93 of the Mississippi Code of 1930, as amended, deals with Burial Associations.
Counsel for the appellee misses the point when he calls attention to Section 5170 of the Mississippi Code of 1930, since the funeral benefit contract here sued on and involved in this suit agrees only to provide for certain funeral benefits therein enumerated and not for the payment of funds unless the Association should deem it impracticable to serve the member.
Counsel for the appellee attempts to class the policy here involved as a "life policy" so as to sustain the correctness of his having brought the suit in Bolivar County, Mississippi, under Section 497 of the Mississippi Code of 1930, this county being that of the residence of the beneficiary, when it is not disputed that the death of the husband, V. T. Smith, occurred in Copiah County, Mississippi. Therefore, even though the court should hold that it was proper to bring the suit in a county other than Quitman County, it must necessarily hold that the suit should have been brought in Copiah County since this is the county where the loss occurred and the policy here involved is not a "life policy." In other words, for the court to sustain the position of the appellee, it must decide that this funeral benefit contract is a life policy, otherwise the action of the lower court was in error.
We cannot believe that this court will construe the funeral benefit contract involved in this case as a policy of life insurance and to sustain the position of the appellee, that is exactly what the court will be forced to do.
J. C. Feduccia, of Cleveland, for appellee.
It must be carefully noted that the action brought by the appellee herein is against the Marks Burial Association, a burial insurance company, insuring the lives of people to the extent that they will furnish for the benefit of the deceased a complete funeral with all its paraphernalia, and that they state specifically under Section 10 of the standard provisions of its policy, ". . . that if for any reason the Association is unable to perform any of the services contracted for in this contract the Association will pay the full amount due the deceased in cash, which shall be in full settlement of all claims under this contract."
By the terms of that provision of the said policy the association undertakes to pay off in cash to the deceased, or his legal representatives, the face amount of the policy, and in so doing have committed themselves to the business of writing life insurance in addition to burial insurance.
We respectfully call the court's attention to Section 5170 of the Mississippi Code of 1930.
The above statute particularly singles out associations, partnerships, and individuals, in addition to corporations, which would necessarily include the appellants in their business as the Marks Burial Association. The statute further states where a contract is written conditioned upon the continuance or cessation of human life, or involving insurance, guaranty, contract, etc., for the payment of money would certainly refer unquestionably to the policy before the court here, which definitely and specifically provides for the payment of money that is conditioned upon whether or not the husband of the appellee continued or ceased to live.
The same statute brings within the category of insurance companies any association who employs agents to solicit such business.
The fact of employment of agents to bring in business for the appellants definitely brands them as a life insurance company within the meaning of Section 5170, and together with the provisions of said burial policy, making it at the same time a life policy, brings it within the meaning of the said section would certainly and undoubtedly subject them to the laws herein made and provided for the government of life insurance companies to the extent that they cannot evade the provisions of Section 497 of the Mississippi Code of 1930.
As long as the appellants herein operate the Marks Burial Association in such a manner and with such provisions in its contract that provide for the payment of a stipulated sum of money depending upon the continuance or cessation of human life, they would be deemed to be writing a life policy; and, therefore, on the authority of said Section 497, may be sued in the county in which the beneficiary resides.
Masonic Benefit Assn. v. Dotson, 71 So. 266, 111 Miss. 60; Universal Life Ins. Co. v. State ex rel. Miller, 121 So. 849, 155 Miss. 358.
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...cannot be used as the basis for selecting venue. To hold otherwise would be to ignore the intent of the statute. Peterson v. Smith, 188 Miss. 659, 196 So. 505, 506 (1940). ¶ 17. In determining if the Farm Bureau was fraudulently joined, we must (1) Whether the action was initiated in good f......
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