Opinion
No. 33873.
November 13, 1939.
1. ABATEMENT AND REVIVAL.
A "personal action" which survives is an action brought for the recovery of personal property, for enforcement of contract, or to recover damages for breach thereof, or for recovery of damages for commission of injury to person or property.
2. ABATEMENT AND REVIVAL.
Where no beneficiary is named in life policy, suit filed by insured for reinstatement of policy can be revived in the name of insured's executor, administrator or other legal representative (Code 1930, sec. 516).
3. EQUITY.
Where injured died during pendency of his suit in equity for reinstatement of life policy, and it was necessary to have cancellation of policy set aside and policy reinstated before policy could be enforced at law, beneficiary could proceed with suit by revivor and supplemental bill.
4. APPEAL AND ERROR.
The Supreme Court would not be justified in reversing judgment in favor of beneficiary who had been permitted, after death of insured suing for reinstatement of life policy, to proceed by revivor and supplemental bill, even if the case had not been one of purely equitable cognizance, in view of constitutional provision that decree of court of chancery shall not be reversed or annulled for want of jurisdiction to render decree (Const. 1890, sec. 147).
5. INSURANCE.
Evidence warranted reinstatement of life policy which had been cancelled for nonpayment of a monthly premium, on ground that the monthly premium was paid in due time.
APPEAL from the chancery court of Lincoln county; HON. V.J. STRICKER, Chancellor.
A.A. Cohn, of Brookhaven, for appellant.
The court erred in permitting Mrs. Minnie Durr, the beneficiary in said certificate, to revive the original suit in her name after the death of her husband, Lewis Durr, Jr.
We call the court's attention to the original bill of complaint filed in this cause and point out that there was no general prayer for relief in the bill of complaint, but a single prayer that the appellant be compelled to specifically perform the said contract. Subsequent to the filing of this bill of complaint and before the cause came on for trial the said Lewis Durr, Jr. died, and we contend that the estate of Lewis Durr, Jr. had no right to revive the pending cause for the reason that Mrs. Minnie Durr, the present appellee, was the beneficiary in said certificate and she alone had the right to institute said suit — not as a representative of the estate of Lewis Durr, Jr., but in her individual capacity as beneficiary in said policy. Section 1714 of the Code of Mississippi 1930 does not apply in a case of this kind.
The original suit, which was revived, asked for no money judgment against the appellant, but was simply a suit to reinstate Lewis Durr, Jr., as a member of the society. We do not concede that the suit filed was in the nature of a personal action, as defined by this court in the case of McNeely v. City of Natchez, 114 So. 484, and for that reason we doubt very much whether the cause of action could survive to an executor or administrator. This cause of action would not survive under the common law or by our statute, and, therefore, the action abates.
1 C.J.S., Sec. 116, and note 86; State ex rel. Mitchell v. City of Shawnee (Okla.), 31 P.2d 552; Chilcote v. Hoffman, 119 N.E. 364, L.R.A. 1918D, 575.
The appellee failed to meet the burden of proof resting upon her in that she failed to prove by a preponderance of the testimony or with any degree of certainty the allegations in the bill of complaint or the supplemental bill.
We submit that under the decisions of this court the appellee has utterly failed to establish her case to that degree of certainty and positiveness which is necessary to entitle her to a decree against the appellant. A mere probability or possibility is insufficient.
Kramer Service, Inc., v. Wilkins, 186 So. 627; Yazoo M.V. Railroad Co. v. Boone, 111 Miss. 881, 72 So. 777; Tyson v. Utterback, 154 Miss. 381, 122 So. 496, 63 A.L.R. 1188; New Orleans N.E. Railroad Co. v. Holsomback, 168 Miss. 493, 151 So. 720; Williams v. Lumpkin, 169 Miss. 146, 152 So. 842; Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; Yazoo M.V. Railroad Co. v. Lamensdorf, 180 Miss. 426, 177 So. 50, 178 So. 80; Teche Lines v. Bounds, (Miss.), 179 So. 747; Berryhill v. Nichols, 171 Miss. 769, 158 So. 470; Mutual Benefit Health Accident Association v. Claudia May Johnson (Miss.), 186 So. 297.
E.B. Sauls, Jr. and R.L. Jones, both of Brookhaven, for appellee.
Lewis Durr, Jr., when advised that the insurance company had wrongfully cancelled his policy had three courses: (1) To ignore the cancellation and keep the policy in force by paying or offering to pay the premiums thereafter accruing. (2) To sue in equity to set aside the cancellation. (3) To treat the cancellation as an anticipatory breach of contract and sue for damages.
Callender v. Lamar Life Insurance Company, 182 So. 119.
Mr. Durr elected to follow the second course and filed his suit in equity seeking to have the cancellation set aside and the policy reinstated. Mrs. Minnie Durr, his wife, was the beneficiary in the policy. In his suit, Mr. Durr tendered the premiums and stood ready, able and willing at all times to pay the premiums accruing on his contract.
The appellant answered Lewis Durr's bill of complaint denying that he was entitled to have the cancellation set aside and claiming that Durr had become delinquent by failure to pay the premium for February, 1933. Section 516, Code of 1930, on the death of any plaintiffs in actions which survive authorizes the heir, legatee, devisee, executor, administrator, or other legal representative of such plaintiff to appear and become party to the action. The Supreme Court of Mississippi has defined those personal actions which survive as "an action brought for the recovery of personal property, for the enforcement of some contract or to recover damages for its breach or for the recovery of damages for the commission of injury to the person or property."
McNeely v. City of Natchez, 148 Miss. 268; Leavenworth Sons, Inc. v. Hunter, 150 Miss. 245.
Certainly the suit for reinstatement of the contract was a suit seeking the enforcement of the contract. It is a general rule under the common law regardless of statute that causes of action based upon contract survived the death of either party.
1 C.J. 181, Sec. 326.
The general rule under the statute and in equity is that on the death of the plaintiff the suit may and should be revived or continued according to the subject matter in the name of the heir, personal representative or other person succeeding to his interest.
1 C.J. 221, Sec. 445; Criscoe v. Adams, 123 Miss. 54.
Under the common law, actions based upon contract survive except in those cases where the damages claimed are purely personal.
1 C.J.S. 184, Sec. 137; 1 C.J. 181, Sec. 326.
The right to sue for specific performance of a contract survives, and the right to sue for rescission or cancellation of contract survives.
1 C.J. 179.
As a general rule the maxim, actio personalis moritur cum persona, does not apply to cases of which courts of equity take cognizance; or, in other words, equitable remedies exist to the same extent against executors and administrators as they did against the decedent.
1 C.J. 117, Sec. 312; 1 C.J. 155, Sec. 253; I C.J. 238, Sec. 512 and Sec. 513; 1 C.J.S. 222; National Council of Knights and Ladies of Security v. Scheiber, 169 N.W. 272, 141 Minn. 41.
If the filing of the bill of revivor and supplemental bill were erroneous it would simply go to the jurisdiction of the Chancery Court and to reverse this cause would be to hold that Mrs. Durr's suit on the certificate should have been filed in the Circuit Court. With this in mind, we invoke the familar section of the Mississippi Constitution providing that no judgment or decree in any Chancery or Circuit Court rendered in civil causes shall be reversed or annulled on the ground of want of jurisdiction to render said judgment or decree.
Section 147, Mississippi Constitution.
We submit that the evidence was ample to sustain the judgment of the court on the issue that the premium for February, 1933 was duly paid.
National Life Insurance Company v. Sparrow, 151 Miss. 387; Sovereign Camp, Woodmen of the World, v. Rhyne, 171 Miss. 693.
The defendant admitted receiving the money for the various premiums, and this admission with the testimony of Emmett Durr and G.A. Decell, the postmaster, and the statements of the policy more than made out a prima facie case. In fact these made out a substantial case sufficient to support the judgment of the Chancellor regardless of the fact that the burden of such defense was on the defendant. However, the burden was on the defendant.
33 C.J. 110; 37 C.J. 617.
This is an appeal from the Chancery Court of Lincoln County, and from a decree in favor of the appellee for a death benefit under a policy on the life of her husband, Louis Durr, Jr. The decree was for the full amount of the policy, less a lien thereon for the sum of $289.53, and less certain premiums accruing from March 1, 1933, to the date of the death of the insured on January 24, 1938, and which premiums had not been paid during said period for the reason that the insurer had cancelled the policy because of an alleged failure to pay the monthly premium due thereon for the month of February 1933, and which said premiums were tendered in the bill of complaint filed by the insured during his lifetime for the purpose of having the said policy reinstated.
Subsequent to the death of Louis Durr, Jr., which occurred during the pendency of the suit filed by him for a reinstatement of the policy as aforesaid, the appellee, being the wife and heir of the insured, as well as the beneficiary in the policy, filed a motion for a revivor and for permission to file a supplemental bill to have the policy reinstated and the terms and provisions thereof enforced. A bill of revivor and supplemental bill was filed by the appellee without having first obtained an order upon her motion to revive, but an order was later entered reviving the cause and permitting her to file the supplemental bill of complaint, and she thereafter refiled the same. On this supplemental bill process was issued for the appellant and duly served in the manner provided by law. The appellant had contested the motion for a revivor and for the appellee to be allowed to file the supplemental bill of complaint; and hence the order of the chancellor sustaining the motion and permitting the revivor and the filing of the bill is one of the errors assigned on this appeal.
In the case of McNeely v. City of Natchez, 148 Miss. 268, 114 So. 484, the Court declared that a personal action which survives is "an action brought for the recovery of personal property, for the enforcement of some contract or to recover damages for its breach or for the recovery of damages for the commission of injury to the person or property." A suit to reinstate a contract has as its ultimate object the enforcement thereof. Upon the death of Louis Durr, Jr., his rights and interest in having the cancellation of the policy set aside, and the contract of insurance reinstated, became vested in the appellee as beneficiary under the policy. Otherwise, she would not be entitled to have the contract reinstated and enforced even in a separate suit filed by her for that purpose. If no beneficiary had been named in the policy, it would be clear, under Section 516 of the Code of 1930, that the suit filed by the insured could have been revived in the name of his executor, administrator or other legal representative. The only authority called to our attention in the briefs of counsel on this point, wherein the beneficiary in an insurance policy or certificate was involved is that found in 1 C.J.S., Abatement and Revival, page 222, section 170, and National Council of Knights Ladies of Security v. Scheiber, 141 Minn. 41, 169 N.W. 272, which recognize the right of an insurer to revive a suit for the cancellation of a policy against the successors in interest of the insured, including the personal representatives, transferee or beneficiary, when the suit is pending for that purpose at the time of the death of the insured, and we see no reason for allowing an insurer to revive an action in equity against the beneficiary, where the insurer is seeking the cancellation of the policy, and then denying the right to the beneficiary to revive a suit brought by the insured against an insurer to set aside an alleged wrongful cancellation of a policy.
The rule is stated in 1 C.J. 238, Sections 512-3, as follows:
"Section 512. By Bill of Revivor. According to the strict chancery practice, whenever a suit abates by death, and the interest of the person whose death has caused the abatement is transmitted to a representative which the law gives or ascertains, as an heir at law or an executor or administrator, the suit may be continued by a bill of revivor merely."
"Section 513. By Bill in Nature of Bill of Revivor, and Supplement. But when, by the death of a party, his interest in the property in controversy is transmitted by a devise or in any other manner than by operation of law, so that the title as well as the person entitled may be questioned, the suit cannot be continued by a bill of revivor. In such case an original bill in the nature of a bill of revivor and supplement must be filed. The ground of distinction is that bills of revivor proper are founded on mere privity of blood or representation by proof of law, and the original bills in the nature of bills of revivor upon privity of estate or title by the act of party."
We are of the opinion that it was proper for the appellee, as the sole person interested in having the policy reinstated and the payment of the death benefit enforced, to proceed with this suit in equity by revivor and supplemental bill, in view of the fact that it was necessary to have the cancellation set aside and the policy reinstated before it could have been enforced at law. New process having been issued under the supplemental bill and duly served on the appellant, it having thereafter filed its answer to the supplemental bill, it follows that the court acquired jurisdiction of the case to determine the rights of the parties. Moreover, even if the case had not been one of purely equitable cognizance, we would not be justified in reversing on that ground in view of Section 147 of the State Constitution.
Upon the trial on the merits, the issue was limited by agreement of counsel as follows: "It is agreed between the attorneys for complainant and defendant that the only issue of fact to be presented is whether or not the premium on the policy mentioned in the pleadings was paid for the month of February, 1933." The appellant contends that the appellee failed to establish by a preponderance of the testimony the affirmative of that issue, and that therefore the chancellor should be reversed on the finding of fact. The record discloses that Emmett Durr, a son of the insured and of the appellee, testified that he lived in New Orleans, La., and that he sent a postoffice money order to L.F. Noble, financial secretary of the Woodmen of the World Camp at Grange Hall (the camp with which the insured, Louis Durr, Jr., had been connected) each month, for an amount sufficient to cover his own assessment and that of his father; that he had done so for several years; and that he sent a postoffice money order for a monthly assessment under his father's policy, which amounted to $1.03, on February 7, 1933. He was unable to testify with absolute certainty that this payment was for February, 1933 (which was required by the terms of the policy to be paid by the last day of the month), or whether it was for the preceding month. He was only able to say that his father always "kept his dues up," and that he himself had sent an installment by postoffice money order to L.F. Noble, the financial secretary of the local lodge, each month since 1929. He introduced money order receipts showing remittances during December, 1932, and January, February, March, April and May of 1933. It was shown by the postmaster at Wesson, Mississippi, that these money orders were paid at the office to L.F. Noble on December 12, 1932, January 12, 1933, and on the 13th day of February, March, April and May, 1933, respectively. The installments due for February and March were sent by Mr. Noble to the home office, but their acceptance was refused on the ground that the installment due for February was not paid until the 26th day of March and that the policy had therefore become lapsed. These two installments, together with those for the subsequent months heretofore mentioned, were refunded to the insured by Mr. Noble on the ground that the insured had been suspended for nonpayment of the February installment within the time required.
The insured did not thereafter apply for reinstatement as provided for in the policy for the reason that he was no longer in good health, which was essential to reinstatement.
The policy was issued on May 17, 1906, and recited the receipt of the first monthly installment in advance. However, Mr. Noble and another member of the local camp testified that it had been a custom among the members generally to pay the first installment in advance and to then wait until about the last day of the next succeeding month before paying the second installment. But, Mr. Noble had been financial secretary of the local camp for only fourteen years, and of course was not in position to know positively whether or not Louis Durr, Jr., paid his second installment within thirty days after May 17, 1906, and within each thirty days thereafter, without taking advantage of the period of approximately sixty days allowed in which to make the second payment. He and the other witness referred to knew only that it had been the general custom for the members of the lodge to be one month in arrears, and based upon that generally accepted and well established custom among the members, Mr. Noble testified that the payment made on February 7, 1933, was for the installment due in January, 1933. He also stated in substance that he, as financial secretary of the camp, had until about the 13th day of March to make his report for the month of February in order that the installment due by each member for February would reach the home office by the 15th day of March; and that while the policies provide that the monthly installment must be paid before the last day of the month in which the installment is due, he adopted a custom of permitting them to pay at any time before the 13th of the succeeding month.
It is said in 33 C.J. 110, that "Where defendant pleads and relies upon the nonpayment of a premium or assessment as a ground for forfeiting the policy, or wholly or partially avoiding liability thereon, the burden is on it to prove such nonpayment; . . ." Again, in 37 C.J. 617, it is said that: "Payment of Premium or Assessment. The burden of proof ordinarily is on plaintiff to prove payment of the first premium or assessment upon the payment of which the existence and validity of his policy depends, or to prove the payment of other premiums which, under the terms of the policy, are conditions precedent to keeping the policy in force, or to prove a waiver of such payments. But the burden of proving nonpayment of premiums or assessments as a defense is on defendant, where facts sufficient to show a prima facie case for plaintiff are either admitted or proved; . . ."
In view of the fact that the money order which Mr. Noble says was purchased at New Orleans on March 21st and received by him on March 26th covered an installment due on both the policy held by Emmett Durr and the one held by his father, and it was shown that the father was suspended while the son was not, and that this was true notwithstanding the fact that the father's installment sent in February was sent on the 7th and the son's not until the 20th, we are unable to hold that the decision of the chancellor was manifestly wrong under all of the facts hereinbefore stated in holding that the February installment on the policy in question was paid in due time; and especially in view of the fact that the postmaster at Wesson, Mississippi, testified that he cashed the money orders for Mr. Noble on the 12th day of December, 1932, and January 12, 1933, and on the 13th day of February 1933 to May 1933, inclusive, sent by Emmett Durr each month.
The decree of the chancellor must therefore be affirmed.
Affirmed.