*1
611
on a
a sure-
venue
subcontractor’s
tablish
complaint against
Co.,
Cavettev. Ford Motor Credit
260 Ark.
We
do
ignore
ty.
that venue
We agree. C.J., Harris, Holt, JJ. INSURANCE COMPANY CITIZENS DRUMMOND v. FUNERAL HOME and ROLLER SERGEANT, Executor of Chester MILLER, Mae Deceased Estate of Dorothy Elton KIRBY and Alan BLEVINS d/b/a HOME KIRBY-BLEVINS FUNERAL 2d 588 S.W. 78-206 1, 1979 delivered October Opinion (In Banc) 19, 1979.] denied November [Rehearing *3 B. H. and Terry Poynter, appellants. Stubblefield Sanders, H. Ted for appellees. Spencer, This involves V. III appeal Special Justice. J. (3) cer- three contractual interpretation proper Association, Baxter Burial and
tificates issued by County hte should have been issued whether order by restraining court to an contractual right. lower protect alleged Baxter are The County The material facts undisputed. No. 11022A Burial Association issued certificate Miller, $300.00 and later issued amount of Mae Dorothy Iris $500.00 to Pauline certificate No. 11950 in the amount Walton, $500.00 12067 in the amount and certificate No. are state they E. Beam. The burial certificates John to the burial subject association by-laws, which are fully certificate, in the Miller and a reproduced general summary of the are in the Walton and Beam cer- by-laws reproduced tificates. The as set forth in the Miller by-laws certificate different from those set forth in Walton and Beam cer- tificates. 25, 1973,
On the Baxter Burial Association May County contract, entered into a reinsurance under terms of which all burial certificates issued Baxter existing Burial County Association were transferred to the Drummond appellant, Insurance Citizens which assumed all contractual Company, thereunder. liability Drummond Citizens Insurance Com- had selected the pany Roller Funeral Home of Home, Arkansas, Mountain to furnish the funeral services Both supplies. common appellants essentially officers, and a common ownership number in telephone Home, Mountain Arkansas. 25, 1976,
On December Mae Miller died and Dorothy Home were notified Funeral appellants by Kirby-Blevins Funeral Home Kirby-Blevins had been selected funeral, deceased to family handle the were they if asked $300.00 benefits under the burial certificate would be provided. that no ser- responded *4 or vices merchandise would be unless Roller provided Funeral Home was allowed to furnish the entire funeral ser- vices and merchandise. Funeral Home then Kirby-Blevins with the proceeded funeral arrangements. 25, 1977, died, On E. Beam and on 20, July June John
1977, Pauline Iris Walton died. Notice each death was given Funeral Home to the by Kirby-Blevins who appellants, refused to services or again merchandise provide any unless Roller Funeral Home the entire funeral services provided and merchandise. Funeral Kirby-Blevins Home again proceeded with the funeral arrangements.
The Drummond Citizens Insurance appellant, Com- filed a pany, petition tendered interpleader into $400.00 lower court on an insurance which is not in policy named issue and the two appellees as The respondents. of the estate of executor as Chester appellee, Sergeant, for on the Miller counterclaimed Mae Dorothy 1300.00 Kirby appellees, Elton Miller burial certificate and Home, Funeral Blevins Kirby-Blevins Alan d/b/a certificates and Bean the Walton assignees The of those certificates. $500.00 each for on counterclaimed prayed Insurance Company, Citizens Drummond appellant, Home Funeral relief Kirby-Blevins for restraining injunctive in- on all burial would credit give from advertising which the with company surance regardless policies, Home, in- Roller Funeral The was carried. appellant, policy of Drum- case, and adopted tervened in the pleadings mond Citizens insurance Company. decree,
The court in its lower dated October to the contained the Miller burial only referring wording certificate, found which in the certificates nothing provid- ed that the burial association was not to furnish required benefits under the certificates unless it was allowed to furnish all of the funeral services a director of its choice. It through further found that Drummond Citizens In- appellant, surance was cash under these Company required pay to be used or services merchandise purchasing from a funeral director not but approved by its failed to having furnish merchandise undertaker as in the certificate of a value approved provided amounts, to their face it was liable in equal case for the face amounts of the certificates. The lower court also denied any relief injunctive had failed to show finding appellants of the evidence that preponderance Kirby- appellee, Blevins Home, Funeral acts unfair performed constituting which resulted in competition any damage appellants. First, raised two reversal. appellants points contend that cash cannot be recovered under a burial certificate for a funeral service where the providing funeral service is contract; tendered as provided *5 Funeral Home should secondly, Kirby-Blevins be enjoin- ed from that it will full credit on burial cer- advertising give Home, tificates where the Roller Funeral is the service. designated provide of the the context in be must placed contention The first certificates. The (3) of the three provisions specific the certificate reads by-laws in Miller of the portion material follows: of the dies, in the charge “4. member person When who Secretary-Treasurer, once the shall at notify body an under- and casket service shall furnish the his choice. taker of funeral, services
5. shall receive including All members the in which in amount in class casket the specified held their benefit certificates. they and casket to members benefit
The services holding Association, with the Burial Baxter County of, in shall the standard with the be toup keeping and casket sold at similar licensed em- services prices by of and other towns in and funeral directors this balmers to be this furnished by The funeral territory. this do include Association any payment any in burial lot any cemetery. that furnished the
(a) funeral than If more expensive desired, be the family is Association it may arranged by on of member’s benefit applied the deceased and the of same. payment of shall have the
(b) The relatives charge privilege casket, other embalming, selecting clothing merchandise or service of the funeral director.” certificates, material In the Beam and Walton por- contain the tion association following by-laws language: Association, those of a member death
“Upon shall of the deceased body notify charge exclusive who shall have Secretary-Treasurer, to be selected furnish funeral services and supplies, of the deceased and those charge body Cer- face of the Membership value amount equal *6 617 tificate, Secretary- of the a funeral director through shall Funeral services and Treasurer’s choice. supplies member of Association be furnished a deceased be, notice to the Secretary- wherever he or she upon may Director If the funeral employed Treasurer. customarily cannot service this certificate the association by issuing of the distance to be account the deceased on body traveled, shall then the Secretary-Treasurer employ can No funeral director who service body. another those in shall to the or cash be family charge paid for which the deceased, all of the but amounts body be in Association is liable shall payment applied fur- services and funeral director for the funeral supplies instances, be the minimum shall nished him. In such by The 70 amount of the certificate. cent of the face per will not held liable for Association be any or made or furnished by supplies arrangements, of the other that the Secretary-Treasurer any Association.” need not whether the
We decide change apparent the date of the issuance association between by-laws the Beam and Walton burial certificate and burial Miller Miller, that deci- was on Mae as Dorothy binding also note sion not to a this case. We is decision necessary 91 66-1809, of Act as a part Stat. adopted Ark. Ann. § and shall have all associations burial provides rules as the Burial maintain and by-laws prescribed Association Board. record this case does reflect for burial at what were associations by-laws prescribed of death of time of reinsurance contract at time not decide whether holders, so we certificate need each of the were on these certificate such by-laws prescribed binding on the holders. reliance All by-law parties placed forth. set provisions previously out of the Burial associations arose years depression those our for the mutual benefit of who desired country at a would be a decent assurance modest that they price given Association burial. The Baxter Burial County proper was in 1935. The one incorporated distinguishing was that characteristic these burial associations laudatory 618 funeral. a was respectable guaranteed complete person associations statute first
Arkansas recognized of Arkansas. In Act Act 264 the Acts *7 alia, Burial Association inter created the Arkansas association, the Board, Burial and limited a redefined member of an association benefits to any amount of provided $500.00. than to more not in- funeral and merchandise cost of services
As the associations were over the the the creased years, by-laws no a so that associations many longer guaranteed changed be in the evolution can funeral. This recognized complete to as opposed of the earlier Miller burial certificate wording in Beam burial certificates. the the later and Walton wording material of the A of the reasonable portions interpretation funeral a was certificate indicates that Miller complete association, and burial services including the by guaranteed $300.00 a $300.00. Although complete the sum of casket for this difficult to in our funeral is imagine present economy, However, in cer- the was the the association. obligation of association, the the in- issued tificates later by language intended, but that that a funeral was dicated complete exclusive to furnish ser- the would have the association amount of the of a value face vices supplies equal of the be certificate to selected those body. by charge considerable reliance on the The placed Association, 70 So. AmericanBurial 2d case of v. Lowery a 1936 (1954), from our sister state of Mississippi, involving which a funeral benefit contract complete provided $35.00 $125.00 on the from to number valued depending In in the association. the years membership to furnish a holder and the association contract died agreed the in the amount of contract. funeral valued complete However, the of a the used services husband deceased association and the burial funeral home not authorized by for his furnish casket wife’s called the association to upon amount could the be that policy policy provided body. casket, as for desired such by used the family any way court stated that was service, etc. The hearse embalming, benefits, that the this contemplated apparent plainly furnished the furnished, to be whatever through required association, offered facilities of since the association its full of its contract through performance by furnishing casket, robe, funeral, facilities a including complete contract, of no hearse service as valued in it was guilty breach of its contract.
We that the both that case and in the benefits agree case be at bar were furnished required however, do not facilities of the association. We agree, the facilities of association could not be used family of the deceased for the of funeral selection supplies the value unless services were up policy, complete that the be noted the association. should also provided It case policy be language Lowery may distinguished from contained in Walton and Beam cer- language *8 tificates as those later do not for a com- certificates provide us in con- funeral. the record before We reviewed plete detail, siderable and the is unclear record as to whether the $300.00 a tendered funeral valued at on complete certificate, the Miller but regardless, our on decision this would remain point unchanged.
This court has held that a association burial previously certificate is so similar to a of that insurance policy of rules recognized construction such policies governing Inc., Association, Andersonv. Frank Reid Burial 218 applicable. 817, Ark. 239 12 2d (1951). S.W.
It is our that the in all three opinion by-law provisions (3) certificates suffer from and in such cir- ambiguity, cumstances, the court will which is adopt interpretation most favorable his 46 to insured or In- beneficiary. CJS 1468, surance 802; Sec. Woodman World Ins. v. p. of Life Reese, 206 Ark. 176 2d 708 (1943). S.W.
A of insurance law in our established principal firmly state is contained a of insurance provisions policy must be construed most the insurance com- against strongly it, which and if a pany reasonable construction prepared may be to the contract which would given justify recovery, would be of do the court to so. Traveler Com- duty Indemnity v. 295 (1961). 232 Ark. 342 pany ImogeneHyde, S.W. 2d
620 of in- law that of insurance policy
It is a cardinal rule favor the insured of to be construed surance is liberally stated, if the or, as more fully the insurer strictly against uncer- doubt or or there is is employed ambiguous, language is and it two in- meaning its fairly susceptible tainty insured and the other to the one favorable terpretations, 44 insurer, will be the former to the favorable adopted. CJS Assurance First 1166; (1), Heritage 297 c. InsuranceSec. p. Life Butler, 1164, 455 2d K. S.W. Ark. v. Company James (1970). the material
A construction of provisions reasonable indicate that those charge certificates would the burial have the to select those funeral the body and/or amount of the certificate of a value face equal supplies association or funeral home of from the designated that the no in the certificate its We find requirement assigns. must funeral those in allow the charge body family funeral on home to furnish the so designated complete penal- of all benefits. forfeiture ty Drummond Citizens In- refusal services and merchandise to
surance Company, provide certificates a breach of the value of the constituted extent the certificates do not of the contractual Although provisions. benefits, services and since the merchan- cash provide dise been for the deceased certificate have already provided holders, for the face value of awards monetary *9 of the con- as the measure justified damages proper of the certificates. tractual breach of each is whether the The second the raised by point appellants lower Kirby-Blevins court shall have Funeral Home enjoined advertising give from that it full credit on burial cer- would to tificates where Roller Funeral Home is provide designated service, funeral or the as restated by appellants, Funeral should be from inten- Home Kirby-Blevins enjoined with and business the contracts expectan- tionally interfering cies of state their brief as appellants. appellants follows:
Such Roller advertising wrongfully deprives Appellant its business Funeral Home of vested right expectan- the benefits under the burial certificates cy providing fur- it of the business well as expectancy depriving over merchandise and service and above nishing or certificate amount benefits provided policy involved. In-
Since is our the Drummond Citizens opinion home, surance its Company, designated Home, Roller Funeral had the contractual right obliga- tion to furnish benefits under the burial certificates to the ex- value, not the contractual but did tent of their face service over and above to merchandise and furnish right benefits, such the amount of the advertising by Kirby-Blev- valid con- with ins Funeral Home does not interfere tractual Funeral Roller Home. Cer- right appellant, Roller Funeral Home benefits to tainly, right provide the extent of the value of the certificates is not compromised this as demonstrated by endangered advertising Funeral Home for under benefits request Kirby-Blevins nature, certificates. It is a fact of human susceptible that beneficiaries desire the benefits of insurance argument, contracts. We feel confident that the will be given appellants all benefits as set forth in all the opportunity provide burial certificates which were reinsured Drummond Citizens Insurance Company.
We can understand the desire of to furnish a complete funeral at service a cost in excess of the value of the certificates, certificates, but neither under the they contract, have this as a matter of nor can they deny right benefits because another funeral home is selected for ad- ditional services or merchandise.
An is an and like man- injunction extraordinary remedy, damus and is one which is reserved for extraor- prohibition, circumstances. It is our that an dinary injunction opinion where the contract does not should not be granted plainly confer and, case, to be in this we find no protected, *10 Cf; contractual that commands In- 43A protection. CJS Sec. 113. junctions, p. 622
The decree of the lower court is affirmed. accordingly Byrd Fqgleman, Purtle, not participating. JJ., G. B. Special opinion. Nance, joins Jr., Justice dissent. G.J., J., Harris, Holt, I dissent respectfully Holt, Justice, dissenting. Frank the certificates am- which holds from the opinion majority that the view, certificates effect In provide my biguous. to has exclusive right funeral home provide designated is not liable and that the Association furnished another. Since the funeral services supplies of the ser- holders of the chose avail themselves funeral home other than the one vices and merchandise of a insurance com- and approved by designated appellant cer- under the entitled cash benefits they pany, tificates.
Nora GIBSON v. Merna W. GIBSON
and Cecil L. GIBSON 79-59 589 2d S.W.
Opinion delivered October (In Banc)