Protective Life Ins. Co. v. Lamarque

• Decision Date: 22 November 1937
• Docket Number: 32803
• Citation: 177 So. 15,180 Miss. 243
• Court: Mississippi Supreme Court
• Parties: PROTECTIVE LIFE INS. CO. v. LAMARQUE

177 So. 15

180 Miss. 243

PROTECTIVE LIFE INS. CO. v. LAMARQUE

No. 32803

Supreme Court of Mississippi

November 22, 1937

Division A

Suggestion Of Error Overruled January 3, 1938.

APPEAL from the circuit court of Harrison county HON. W. A. WHITE Judge.

Suit by F. G. Lamarque against the Protective Life Insurance Company. Verdict and judgment for plaintiff, and defendant appeals. Reversed and rendered.

Reversed and judgment for appellant.

Leathers, Wallace & Greaves, of Gulfport, for appellant.

The introduction in evidence, over the objection of the appellant, of the individual certificate and group policy of insurance was error which was highly prejudicial to the rights of this appellant, the appellee's cause of action itself being founded upon the group policy of insurance.

McGifford v. Protective Life Ins. Co., 151 So. 349; McBride v Conn. Gen. Life Ins. Co., 14 F.Supp. 240.

The lower court erred in refusing to grant to the appellant the peremptory instruction requested at the close of all of the testimony in the case.

On the principle of comity, a court in this state will generally enforce a contract made in another state, applying thereto the laws of the state where the contract was made. Every element essential to the making of the contract of insurance involved in this case had its origin and was completed in the state of Alabama; this policy of insurance contained every element necessary to make it an Alabama contract. The individual certificate of insurance is not a part of the contract of, or necessary to, the insurance; nor would it affect any of the terms of the policy, but served merely as evidence of the insurance of the appellee, whose rights and the appellant's liability would have been the same if the policy had not provided for the issuance of the certificate; and certainly the fact that the appellee finally came into possession of the certificate has no bearing on the question whether the Alabama law or the Mississippi law governs in respect to the furnishing of proof of the appellee's disability.

Boseman v. Connecticut General Life Ins. Co., 84 F.2d 701, 57 S.Ct. 686; Hartford Acc. & Ind. Co. v. Delta & Pine Land Co., 292 U.S. 143, 78 L.Ed. 1178; McBride v. Connecticut Gen. Life Ins. Co., 14 F.Supp. 240; Mutual Benefit H. & A. Assn. v. Baldridge, 70 F.2d 236; Mutual Life Ins. Co. v. Hill, 193 U.S. 551, 24 S.Ct. 538, 48 L.Ed. 788.

It will probably be contended by the appellee that sections 5131 and 2294 of the Mississippi Code of 1930, make the insurance contract a Mississippi contract, and solvable and enforceable under the Mississippi law. This contention was embodied in the appellee's replication in this case, and, we believe, was argued in the lower court, in the very face of the holding of the United States Supreme Court in the case of Hartford Accident & Indemnity Co. v. Delta & Pine Land Co., 292 U.S. 143, 78 L.Ed. 1178, a case involving several of the questions at issue in this cause, and a case decided by this Honorable Court adversely to the contentions of the Hartford Accident & Indemnity Company. The United States Supreme Court, in reversing this Honorable Court, held that the Mississippi statutes above referred to deprive the appellants in this case of due process of law.

It is a well known rule, enforced by our court, and all others, that it is the duty and function of the court to construe and enforce a contract as it is written, and not to attempt to make a new contract for the parties, nor, by implication or construction, to add to the contract words, terms or conditions, exceptions, promises, or obligations which it does not contain; and just as familiar is the rule that, if a contract of insurance, in its terms, is plain, certain and free from ambiguity, there is no room for construction and it is the duty of the court to enforce it as written.

Berry v. Lamar Life Ins. Co., 142 So. 445, 165 Miss. 405; New York Life Ins. Co. v. Alexander, 122 Miss. 813, 85 So. 93; McGifford v. Protective Life Ins. Co., 151 So. 349.

This court has held in a number of cases that, parties to insurance contracts have the right to make stipulations amounting to conditions precedent to liability in assuming obligations in contractual matters, and this is true with section 2294 of the Mississippi Code of 1930, still in force and effect.

Berry v. Lamar Life Ins. Co., 165 Miss. 405; McGifford v. Protective Life Ins. Co., 151 So. 349.

The policy of insurance here sued on being an Alabama contract, we call the court's attention to the two leading cases in Alabama on the principal question involved, the cases of McGifford v. Protective Life Ins. Co., 151 So. 349, and McCutcheon v. All State Life Ins. Co., 158 So. 729.

This court is committed to the universal principal that conditions precedent in the law of contracts, if the conditions are not impossible within themselves, are binding, although by some later event the performance of the condition might become impossible without any fault whatsoever on the part of the promisor.

2 Williston on Contracts, pages 1549 and 1550.

The decisions of the McGifford and McCutcheon cases have been followed by numerous courts, but we see no reason for citing in this brief more than the following cases:

New England Mutual Life Ins. Co. v. Reynolds, 217 Ala. 307, 116 So. 151, 59 A. L. R. 1075; Bergholm v. Peoria Life Ins. Co., 284 U.S. 489, 52 S.Ct. 230, 76 L.Ed. 416; Egan v. New York Life Ins. Co., 60 F.2d 268; Kingsland v. Missouri State Life Ins. Co., 66 S.W.2d 959.

Hewes & Goodman, of Biloxi, for appellee.

In Murray v. Metropolitan Life Insurance Company, 145 Miss. 266, 110 So. 660, a case directly in point with the case at bar, this court stated that "the provisions of the master policy and those of the individual certificate of insurance should be construed together." Therefore, it was proper for the group policy and certificate to be allowed in evidence.

The appellee proved every averment of his declaration and certainly the trial court properly refused to grant a peremptory instruction to the appellant.

Appellant was, prior to the year 1925, and continuously thereafter, authorized to do business in the State of Mississippi, and certainly cannot complain that this court has not the right to construe a policy of insurance covering employees employed in Mississippi with a Mississippi concern.

Section 5131 of the Mississippi 1930 Code states in part as follows: "All contracts of insurance on property, lives or interests in this state shall be deemed to be made therein." Appellee pleaded this section and Section 2294 of the Mississippi 1930 Code, and therefore it is appellee's contention that Section 2294 Mississippi 1930 Code is binding upon the appellant, especially inasmuch as the contract of insurance sued on herein did not state any specified time in which due proof must be filed.

The appellee contends that the termination of his employment and the resulting termination of the insurance only relieved the appellant from liability for injuries and resulting disabilities that might occur after the discontinuance of the insurance, and that it did not discharge any liability to the appellee that had become fixed during his employment and the continuance of the insurance; there is no provision in the contract of insurance which requires the claim and proof of permanent disability to be made before the termination of his employment; and that since appellee's disease and resulting total and permanent disability occurred while he was employed and while the policy was in full force and effect, the liability of the appellant had become fixed and may be enforced in accordance with the terms and provisions of the policy. This is the law in the State of Mississippi and is the proper and fair construction of the policy as stated by this court in Murray v. Metropolitan Life Ins. Co., 145 Miss. 266.

In Taber v. Royal Ins. Co., 124 Ala. 681, 26 So. 252, a case involving the question of whether the benefits under a policy of insurance had been forfeited by the insured for failure to file notice and proof of loss within the time specified in the policy, the Alabama court said: "The omission to give such notice was not by the policy an express term of forfeiture, and without that, the law would be slow to apply any strictness of construction to work a forfeiture, in the absence of any allegation or possibility of damage. We hold that the notice was sufficient in terms and time. . . . Provisions of this kind, to be effective as forfeitures, must be expressed as such in unmistakable terms in the contract itself."

This Honorable Court in the case of Aetna Life Ins. Co. v. Roberts, 174 Miss. 278, 164 So. 311, divided cases for total and permanent disability benefits under insurance contracts into two classes, to-wit: In one class the cases of the type of Berry v. Lamar Life Ins. Co., supra, and New York Life Ins. Co. v. Alexander, supra, which by the terms of the contract of insurance, made the filing of due proof a condition precedent to the right of recovery, In the other class this court enumerated such cases as Standard Accident Life Ins. Co. v. Broome, 111 Miss. 409, 71 So. 653, and National Ins. Co. v. Mitchell, 162 Miss. 197, 138 So. 808, and American National Ins. Co. v. Waters, 133 Miss. 28, 96 So. 739, in which latter class this court said that liability under the contract of insurance did not depend upon the time of filing of proof, but upon the happening of the disability.

It is the universal rule of law pertaining to contracts that the intention of the parties contracting is the governing factor in construing a contract.

The purpose for which the Alabama Power Company originally took out the insurance was to insure its employees and...