PETERSON v. SMITH

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Docket Number

No. 34190.

Judges

Griffith, J., delivered the opinion of the court.

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PETERSON et al. v. SMITH.

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.

The tendency of the courts of this state toward uniformity of laws with respect to all classes of insurance is obvious, whether the same be life, accident, health, disability, or burial; consequently, it is clear that all insurance companies of whatever type or character would be subject to the same venue statute (Section 497, Code of 1930).

In this brief we have sought to present the appellee's side of the case in as concise and straightforward a manner as possible. We have not cited cumulative cases, but rely on Sections 5170 and 497 of Miss. Code of 1930, and the case of Masonic Benefit Association v. Dotson et al., 71 So. 266, 111 Miss. 60, which is squarely on "all fours" with the case at bar, and believe that these authorities sustain the contention of the appellee completely, even though we were to grant every argument made by the appellants, and after a careful perusal of the appellant's brief we fail to see any application of the authorities cited by Marks Burial Association that would warrant a reversal of this case.

1. INSURANCE.

Burial insurance is a valid contract based on a legal consideration whereby the obligor undertakes to furnish the obligee or one of the latter's near relatives at death a burial reasonably worth a fixed sum, and it constitutes "life insurance."

2. INSURANCE.

A funeral benefit contract whereby, in consideration of registration fee and monthly premium, burial association agreed to furnish a complete funeral consisting of casket, robe, and hearse, is an "insurance contract", and association may be sued the same as insurance companies, and the venue statute relating to actions against insurance companies applies to associations (Code 1930, sec. 497).

3. INSURANCE.

The words "actions against insurance companies," within statute providing that actions against insurance companies may be brought in any county in which a loss may occur, or, if on a life policy, in county in which beneficiary resides and also in county where the company has its principal place of business, must be construed in accord with the purpose and intent of the statute rather than the mere letter of the words (Code 1930, sec. 497).

Griffith, J., delivered the opinion of the court.

Appellants are, each and all, residents of Quitman County, and they conduct as partners at Marks, in that county, a business called Marks Burial Association. On June 15, 1938, the Association issued to V.T. Smith a funeral benefit contract by which, in consideration of a registration fee of $1 and a small monthly premium to be paid thereafter until death, the Association agreed "to furnish a Complete Funeral, consisting of Casket, Robe and Hearse valued as follows:

"For members 1 week to 5 years inclusive .... $ 35.00 "For members 6 years to 15 years inclusive .. $ 75.00 "For members 16 years and above ............. $125.00"

On the death of V.T. Smith, his wife, and sole heir at law, paid all the expenses of his burial, as we must assume from the condition of the present record, and sued the association therefor in the sum of $125. The action was brought in Bolivar County, where the wife resides. The association partners appeared and filed a written motion demanding that the proceedings be dismissed or else transferred to Quitman County, where all the partners have their residence, appellants relying upon the concluding sentence of Section 495, Code 1930 — the general statute dealing with the venue in actions at law. Appellee replied that the venue was to be laid under Section 497, Code 1930, which deals with actions against insurance companies, and in reply to that contention appellants submitted that the burial association business about which the action arose is not insurance; and this is the principal question presented.

In 1 Joyce on Insurance (2 Ed.), p. 87, it is said: "Burial insurance is a contract based upon a legal consideration, whereby the obligor undertakes to furnish the obligee, or one of the latter's near relatives, at death, a burial reasonably worth a fixed sum. It is a valid contract, and constitutes life insurance." In support of the text the author cites State v. Willett, 171 Ind. 296, 86 N.E. 68, 23 L.R.A. (N.S.) 197, and State v. Wichita Mutual Burial Ass'n, 73 Kan. 179, 84 P. 757. Some additional cases to the same effect are: Renschler v. State, 90 Ohio St. 363, 107 N.E. 758, L.R.A. 1915D, 501, Ann. Cas. 1916C, 1014; Sisson v. Prata Undertaking Co., 49 R.I. 132, 141 A. 76; State v. Globe Casket, etc., Co., 82 Wn. 124, 143 P. 878, L.R.A. 1915B, 976; and 1 Couch Cycl. Ins. Law, Sec. 32, in sustaining the stated rule, considers that our case, Fikes v. State, 87 Miss. 251, 39 So. 783, may be included, but there is an obscurity in the facts as reported in that case.

We hold, therefore, in accord with the authorities, that the contract here before us is an insurance contract, and that the insurers may be sued in respect to their policy obligations as insurance companies may be sued, and this includes the insurance venue statute found in Section 497, Code 1930. It is true that the cited section speaks of "actions against insurance companies," but these words are to be construed in accord with the purpose and intent of the section rather than to stick in the bark of the mere letter. Masonic Benefit Ass'n v. Dotson, 111 Miss. 60, 71 So. 266.

The two questions above mentioned are the only ones directly raised by the parties and which are within their reach under this particular record, and the foregoing opinion must be construed as confined strictly to the two questions dealt with.

Affirmed.

PETERSON et al. v. SMITH.

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