Sovereign Camp, W. O. W. v. Mcclure
| Decision Date | 08 June 1936 |
| Docket Number | 32228 |
| Citation | 168 So. 611,176 Miss. 536 |
| Court | Mississippi Supreme Court |
| Parties | Sovereign Camp, W. O. W., v. Mcclure. |
(Division A.)
1 INSURANCE.
Under substitute fraternal certificate of life insurance providing that insured could select nonforfeiture option if he defaulted after thirty-six monthly payments had been made thirty-six months began on date fixed in substitute certificate for computation of its nonforfeiture values and not on later date of issue of substitute certificate.
2 EVIDENCE.
In beneficiary's suit on fraternal certificate of life insurance, beneficiary's testimony that insured told beneficiary that he desired to tender premiums after default and would have done so but for fact that fraternal society misled him to believe that tender would be useless without warranty of his good health, held properly excluded as hearsay.
3 TENDER.
Failure to make formal tender may be excused if it appears that tenderee would not have accepted tender if made, but to avail himself thereof, tenderer must show that he was able and desired to make tender.
4 INSURANCE.
Fraternal certificate of life insurance held not continued in force after expiration of period during which certificate was automatically continued in force by application of cash, value to payment of premium on ground that society would not have accepted premiums if they had been tendered, where it was not shown that insured was able and desired to tender premiums.
ON SUGGESTION OF ERROR.
[170 So. 293. No. 32228.]
APPEAL AND ERROR.
In action on fraternal certificate, whether exclusion of beneficiary's testimony that insured told her he desired to resume payments on certificate and would have done so had insurer's letters not indicated that it would not receive such payments without warranty that insured was in good health was proper held harmless, where only evidence that insured was financially able to pay premiums offered was excluded as hearsay.
HON. T. P. GUYTON, Chancellor.
Suit by Mrs. Henry Elizabeth McClure against the Sovereign Camp, Woodmen of the World. From the decree, the defendant appeals. Reversed and dismissed.
On suggestion of error, suggestion of error overruled.
Augustin Magruder and B. M. Walker, Jr., both of Starkville, for appellant.
It is to be noted that appellee here contends that the certificate issued to her deceased husband was continued in force under section 3, "Automatic Premium Loan," there being in the Thomas policy no other means of continuing the policy in force, without the specific exercise of certain options. The insured did not elect to avail himself of the extended insurance provision. Therefore, under the case of Sovereign Camp, W. O. W., v. Thomas, 157 So. 83, the only question now to be determined is whether or not there was a sufficient amount of cash reserve to continue the certificate in force (by virtue of the "back-dating") for thirty-eight months.
Clearly there was no such amount available. Had there been, then under the Thomas case the automatic premium loan provision would have operated to keep the policy in force until such amount was consumed, and the date when it would have been consumed would necessarily have been later than the date of death in order for the certificate to have continued in force.
Since, therefore, Mr. McClure's certificate, giving full consideration to the Thomas case, had a cash surrender value of one hundred and thirty-nine dollars and eighty-eight cents on the date of default, yet that amount was insufficient by fifty-seven dollars and two cents to have maintained the certificate in force to the date of his death, May 3, 1933. The certificate, under any possible construction, cannot be held to have been effective for more than twenty-seven months from the date of default. By that time the automatic loan provision would have exhausted the cash surrender value which was available for automatic application on future premiums. And Mr. McClure lived for thirty-eight months after the date of default.
His certificate had therefore been null and void for ten months, giving to him the full benefit of the Thomas case.
Once the cash surrender value was exhausted there was no possible benefit inuring to the insured or his beneficiary.
The law cannot bring a dead contract back to life.
Sovereign Camp, W. O. W., v. Miller, 164 So. 742; Sovereign Camp, W. O. W., v. Alston, 82 S.W.2d 710; Sovereign Camp, W. O. W., v. Batty, 227 Ala. 50, 148 So. 811.
The Thomas case having been demonstrated to afford no benefit to appellee, her hope of recovery must rest, if on anything, on some vague consideration with respect to tender---that no tender was necessary because it would have been a vain thing for the insured to have made tender.
Appellant's reasons for permitting his policy to lapse died with him. No word of evidence bears out the contention now being made, as evidenced by the final decree in the court below, that the lapse of the certificate was because of any acts of the appellant.
Did the appellant, in the two letters written by its president to the insured, deceive and mislead the insured? Appellee so asserts, vigorously, in her amended bill, to which appellant as vigorously interposes denial in its answer.
If there be proof of such deceit, it must, then, consist in the contents of the two letters themselves. Nothing in any of them waives the provisions of the constitution and by-laws.
A warrant of good health was, under the constitution, made an absolute condition precedent for reinstatement, and hence in the application for reinstatement it was properly incorporated, and appellee cannot be heard to object thereto, or to urge it as an unjust and inequitable condition. W. A. Strong, Jr., of Louisville, and D. E. & J. T. Crawley, of Kosciusko, for appellee.
In November, 1933 there was tried in vacation before the chancery court of Winston county, Mississippi, the case of Mrs. Leona Thomas, complainant, versus Sovereign Camp of the Woodmen of the World, defendant, which was decided in favor of the complainant and appealed to the Supreme Court of Mississippi and there by Division B on October 22, 1934, was affirmed. (157 So. 83.)
That case is similar to this case in two respects. First, because in that case the court definitely decided that under a substitute fraternal certificate of life insurance, providing that nonforfeiture valuation should be computed as if the certificate had been issued on June 1; 1927, valuation would be so calculated, notwithstanding the provision that extended insurance valuation should not become available until three years from June 13, 1929, so that where premiums were paid until March 31, 1931, insured was entitled to nearly three years additional insurance, and insurer was liable to the beneficiary for insured's death on October 18, 1932. Second, because the facts in that case disclosed that the insured in February, 1932, offered to pay to the W. O. W. the sum of three dollars and ten cents which was refused by the W. O. W. and returned to Mrs. Leona Thomas. Thereafter, in October, 1932 the insured died. At the time of his death if the automatic loan insurance had been given full force and effect and had the Woodmen of the World rightfully refused the tender, the policy would have expired and there would have been of necessity premiums paid in cash for the months of March, April, May, June, July, August and September, 1932, in cash in order for her to have recovered.
The above is gathered from the original record filed in the Supreme Court in this case and from the agreement of counsel concerning the testimony of complainant.
In that case the court held that,
Now in this case the policy was to be dated as of the first day of June, 1924, and it is admitted that he paid the insurance premiums through February, 1930. This being true, according to the table as set out in the insurance policy table "A," to which reference is specifically made, and to the said table as set out on page 103 of the transcript of the testimony, at the end of the first certificate year which would be on June 1, 1929, the cash or loan value would amount to one hundred seventeen dollars and thirty-five cents with an extended insurance at that time of three years, three hundred nine days, to which should be added the additional value of the certificate which was increased by payments from June, 1929, to March, 1930, and which is by the appellant here admitted to be the sum of twenty dollars and two cents. The premiums having actually been paid to March, 1930, and the death having occurred on May 3, 1933, which is three years and two months after the date of the last payment, if we follow the decision of the court in the Thomas case, as above set out, there was sufficient accumulation under the nonforfeiture and extended insurance provision to have carried the policy for three years and three hundred nine days, plus the amount of extended insurance the twenty dollars and two cents would have bought, or for a long period of time subsequent to the date of the death of the insured.
Under this interpretation as was followed by the court in...
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