Thompson v. Weems

• Decision Date: 03 May 1940
• Docket Number: No. 9225.,9225.
• Citation: 111 F.2d 566
• Parties: THOMPSON v. WEEMS.
• Court: U.S. Court of Appeals — Fifth Circuit

111 F.2d 566 (1940)

THOMPSON v. WEEMS.

No. 9225.

Circuit Court of Appeals, Fifth Circuit.

May 3, 1940.

Hubert S. Lipscomb and W. Calvin Wells, Jr., both of Jackson, Miss., and Robert H. Powell, of Canton, Miss., for appellant.

J. H. Howie and Joseph H. Howie, both of Jackson, Miss., for appellee.

Before SIBLEY, HOLMES, and McCORD, Circuit Judges.

HOLMES, Circuit Judge.

This appeal involves a controversy over the proceeds of insurance upon the life of Jim Thompson, deceased. When the certificate of insurance was issued, his niece, the appellee, was named therein as the beneficiary. After about seven years, four hours before his death, he requested his employer in writing, as his agent, to change the beneficiary from Nannie Weems (appellee) to Percy Thompson (appellant).

The entire transaction was made and completed on Sunday, if it was ever completed. On a motion for summary judgment, the lower court held that the change of beneficiary was a secular transaction which was void because it took place on Sunday.

The act of the deceased was not a testamentary disposition of property. It was not a gift for several reasons. The policy had no cash value prior to death; there was no delivery; and the transaction was between the insurer and insured. The insured had paid for the right to change the beneficiary at will, and he could make that change on any secular day as often as he desired; but he did not have the right to make it on Sunday, which is the decisive point on this appeal.

The effort to change the beneficiary was an attempt by the insured to transact business with the insurance company on Sunday. If the insured had appeared at the office of the insurer and personally requested a change of beneficiary, and the insurer had changed the beneficiary as requested, in exact accord with the terms of the insured's contract, there could be no doubt that both parties would have been transacting business on Sunday in violation of law. If the beneficiary in a life policy may be changed on Sunday, the same may be done with respect to a fire insurance policy. Nothing laborious would be involved in requesting a vacancy permit or other endorsement on a fire insurance policy, but the assured may not delay these matters until Sunday and then request the insurer to make the endorsement, although the right might be without qualification on any other day of the week.

In the instant case, the formalities required by the insurance certificate were not complied with, and the requested change was not recorded or even received by the insurance company; but the appellant cannot claim to be in any better position than if all such formalities had been complied with and the change recorded on the books. It is immaterial whether we regard a change of beneficiary as the amendment, the execution, or the performance of a contract: It was a business transaction between insured and insurer which could not legally take place on Sunday, and which, if it did not take place on that day, did not take place until after the death of the insured. This court is bound to respect the public policy of the state wherein the contract was made and in which it was to be executed. Under the Mississippi statutes and decisions, the execution or performance of a contract of this character, or the modification thereof, on Sunday, is against public policy and void. Miller v. Lynch, 38 Miss. 344; Kountz v. Price & Dickson, 40 Miss. 341; Foster v. Wooten, 67 Miss. 540, 7 So. 501; Strouse v. Lanctot, Miss., 27 So. 606; City of Gulfport v. Stratakos, 90 Miss. 489, 43 So. 812, 13 Ann.Cas. 855; Grapico Bottling Co. v. Ennis, 140 Miss. 502, 106 So. 97, 44 A.L.R. 124; Stamps v. Frost, 174 Miss. 325, 164 So. 584; White's Lumber & Supply Co. v. Collins, Miss., 191 So. 105; Sec. 1131, Miss.Code 1930.

The Sunday laws in Mississippi are strict, but we have no right to engraft exceptions upon them. The insured had seven years in which to change the beneficiary in this policy from his niece to his brother, but waited until he was at death's door to attend to this business. Then an instrument directing the change to be made was drawn with legal precision. Two witnesses were called upon to attest his signature, and the document was delivered to the agent of the insured; but "death is strict in his arrest," and the insured passed away before any notice of the change was given to the insurance company. It is true that the insured only made his mark on the document in question, but, for the purposes of this hearing, he signed his name thereto; and all things that were done in procuring the witnesses, preparing the instrument, transmitting it to the agent of the railroad company, and notifying the insurance company are deemed to have been done by him or at his special instance and request.

The insurance company was engaged in a trade, business, or calling both...