*1 partner dissolution of who of the firm partnership holds the assets duty of wind- is entrusted with the neglects to up affairs not
ing transfers the account
settle benefit.” for his own of the firm
assets
Judgment affirmed. respondent.
Costs McQUADE, Mc-
KNUDSON, J., and C. SMITH, JJ, concur.
FADDEN P.2d 34 Messerli,
Henry Alta B. A. MESSERLI Plaintiffs-Respondents,
v. INC., GARDENS, an MEMORY
MONARCH Lloyd’s corporation, Advertis Idaho Inc., corporation, ing Agency, a Colorado Defendants-Appellants. STALEY, widow, Plaintiff-
Ellen A. Respondent, GARDENS, INC., an MEMORY
MONARCH Advertising Lloyd’s corporation, and Idaho Inc., corporation, Agency, De a Colorado fendants-Appellants.
Nos. 9448.
Supreme Idaho. Court of
Nov. 1964. *2 Smith, Boise,
Graydon appellants. W. *3 Falls, Kidwell, Holden, Idaho Holden & respondents. KNUDSON, Chief Justice. Gardens, Memory Appellant Monarch “Monarch”, Inc., to as hereinafter referred offering corporation for sale is an Idaho markers, vaults, caskets, public memorial spaces incidental and other interment these services burial services. offers pro- two for sale under and merchandise present, grams, based on a “at-need”, arrangement under which anyone requiring services are rendered to The other immediate burial services. present purchase of the
gram on a is based need, together with future burial services services, “pre-need” known as Appellant, time-purchase sold on basis. Lloyd’s Agency, re- Advertising hereinafter agree- “Agency”, has an ferred to as the Monarch under which it handles ment with pre-need programs. sales Monarch’s “pre-need” appeal involves two This respond- separately with into tracts entered Alta, ents, and his wife Henry A. Messerli 1962, respondent Ellen July and with on widow, July 1962. Sub- Staley, A. respondents to make sequently refused both respective provided by their payments as separate suits and commenced their against appellants for rescission sub- actions involved contracts. Since both *4 issues, they stantially were the same appeal. this trial and solidated for respondents complaints respective In their are involved alleged that the contracts 54-1117; provi- violation of I.C. that the instruments, only § Three two of which are- sions of said contracts selling signed, constitute the evidence the over-all contract en- derogation of insurance in of the into, laws of tered (1) are entitled: Sales state; plaintiffs qualified Agreement are not (signed); (2) Family Security state; as an Agreement within this (signed); (3) and Professional appellant Agency that the acting was as a Services (unsigned). law, real estate broker in violation of and A brief resume provisions- of the essential that the illegal contracts involved are and of said instruments follows:
void. Under Agreement”, the “Sales which was- appellants deny their answer each of signed by parties, purchaser- both respondents’ allegations affirmatively and agrees: provisions contend that the 54— I.C. §§ purchase To $500; a casket at a cost of through arbitrary 54 — 1120constitute an purchase title remain in Monarch until and prohibition appellants’ unreasonable price fully paid; casket to be delivered legitimate business and are unconstitutional. place specified notice; at written The trial court concluded that the con- acknowledged down $10 tracts involved are “insurance” and since payable monthly the balance is install- appellants qualified have not as insurers each; ments of in event de- $14.50 state, under the laws of this the contracts fault Monarch could the con- terminate Judg- are void and unenforceable. involved up tract retain of the total 25% respondents ments for were entered October purchase price liquidated damages. 17, 1963, appeals from which these provides The contract if the also taken. purchaser paid purchase price $373 prepared contracts here purchase involved are within 31 days of date upon printed spaces payments forms with left blank shall die before all have purchasers, price payments insertion of names of been made and if all have been details, together required, unpaid other with lines for made as balance on- signature parties. general contract and note would proceeds visions life insurance- of said contracts are identical from of credit purchased by each case and in order to avoid confusion Monarch. last-men- This repetition shall, if provision inapplicable throughout we tioned following discussion, purchaser prior to age refer the instru- had reached Staley purchase good ments health. involved case. *5 an assigned In the event death of unmar- agreement (5) could not be The purchaser under 21 by purchaser child of without written ried years age, provide Monarch; purchaser Monarch will event sent of charge space hun- moved an area than one free of interment more child; Idaho, dred miles Falls, from Idaho guarantees provide casket Monarch a (6) provide opening Monarch purchase price, or refund 75% grave only closing and of one in its provided given Mon- written notice Gardens, such service include use days arch within ten of the death tent, Memory Chapel chapel purchaser. lowering device, greens, chairs and “Family Security Agreement”, equipment usually pro- other as is signed by specified parties, a also both by pur- Company vided for that price charge, sale service pose; $400 $48 by negotiable of which was evidenced $340 (7) agrees Monarch “set aside
promissory payable at the rate of note place separate fund in a trust per provides month. $14.50 apart funds, all its suf- from of other that: present money, upon its ficient based convey by (1) Monarch will deed present and its wholesale costs costs right of interment interment manufacturers, pay with reliable space semi-developed Garden services for said merchandise and ; (cemetery) placed amount when delivered. The intact said fund shall remain into (2) deposit Monarch the “en- would into express trust fund for the said dowment care trust fund” an amount purpose paying for the merchan- Di- “as set forth the Board of subject to. established”; and be dise services rectors heretofore Agreement, terms the Trust (3) Upon purchaser, his order of the used for therefrom to be the income assigns, pro- heirs or Monarch will Company, or interests the best vide and install vault for a described nominees, Direc- as the Board of interment in the Monarch’s may determine.” tors Gardens; this. will, upon pur- the essence (4) request (8) “A. Time is of Monarch purchaser chaser, Agreement; should assigns, his heirs or install days sixty (60) than in Monarch’s default for more Gardens an individual on the note memorial; installments grave Company may, to herein the cosmetology referred vided which includes option, Agreement hairdressing, surgery at its declare this duro technical payments work; null and retain all and void restorative the facilities to be liquidated purchaser made car, include vided a hearse and first use damages, Company may, chapel, room, reposing or the at its religious and option, outstanding paraphernalia, declare bal- coach, fraternal funeral demand, payable upon general ance due and flower car and assistance *6 pay undersigned agree obituaries, to arranging notices, se- news costs, fees, attorney curing legal demand all permits, court certificates and expenses preparation and reasonable collection shipment speci- for outside of further un- fied thereto. area. connected promissory derstood that the install- provides that, This instrument also ment note be referred to herein will agreements accepted “These will be at negotiated party parties, a third or to any pro- time and these services will be may be and that defense which no vided right as set forth above without the Company may against available part of cancellation on the of Monarch against be the holder of asserted Mortuary.” note, any promissory such and that Although respondents allege in their com- any promissory the holder such plaints that the contracts here involved are to the note shall no event be liable appellants violation of I.C. § 54— purchaser any on account under- deny allegations affirmatively al- takings obligations or Com- lege through that I.C. 54-1120 54-1117 §§ pany”. arbitrary, unreasonable, no bear rela- instrument entitled “Professional Ser- tionship pretended need, any and amount provides in vices” effect that: prohibition to an absolute legitimate Mortuary hereby agrees appellant?; “Monarch Inc. they business of that are un- upon payment cash constitutional void. $200.00 presentation along of this certificate Appellants contend that the trial bill a of sale for casket issued deciding court erred in not the issue raised Lloyd’s Inc., Advertising Agency, aor constitutionality statutes. to the of said casket, provide to conduct a funeral and parties request Both that such be de issue professional de- services and facilities upon appeal cided this and since decision chaser.” necessary of this issue is the ultimate Following paragraph presented listed decision said of the issues we shall professional pro- consider it. services obligated paid and under provide: who involved The statutes place trust;- act to same in when, prior “In all cases 54-1117. term, person ‘beneficiary’ shall be the death, in his person or someone his for whom such fund was estab- agreement an behalf makes lished.” body, disposition under final of his as here- received “All funds 54-1119. pre- agreement, pursuant to a which placed trust provided shall be plan, prop- arranged personal funeral agree- pursuant to an trustee with a erty will be delivered or or services depositor and executed ment upon pro- performed his death or the provide which shall trustee funeral direc- fessional services of a in trust hold the same trustee shall will then be fur- tor or embalmer deposited, purposes for the nished, paid, directly money all pay shall the trustee and that indirectly, agreement, under such filing depositor to the same any agreement under collateral there- copy death certifi- certified of a to, pur- shall be held in trust for the satisfactory evidence cate or other pose for which it until the beneficiary with death of the obligation according fulfilled trustee; however, provided, however, provided, terms: agreement shall further said pursuant made to this sec- *7 beneficiary duly or his that the vide upon tion shall be released death of may, writing, appointed guardian person the for whose benefit such money, the return of the to- demand payment made, payments and no interest, any, if gether with accrued subject so shall made to forfeiture. operation costs incurred the less money Accruals of interest this trust, depositor shall be and the such subject shall be to the same trust.” money from entitled receive such act, purposes this the 54-1118. “For payment to the bene- trustee for the any ‘trustee’ shall mean the term delivery ficiary upon of such written bank, savings insti- trust or demand the trustee. insured Idaho tution the state of inter- and accumulated of such funds Deposit Insurance the Federal with est, this act pursuant to the terms of Savings Corporation Federal or the agreement referred herein and Corporation; Loan Insurance and to, any the trustee of relieve shall any word, ‘depositor’ shall mean regard to liabilities with further interest thereon.” funds such or person money been such to whom wilfully “Any person universally recognized violat- It is 54—1120. provisions this act shall be enactment of ing having statutes for their object guilty prevention misdemeanor.” of fraud of a and deceit is police power within the of the state. 16 Appellants’ challenge principal relates to page Constitutional Law 187 924. § C.J.S. their contention relative I.C. 54-1117 and § A necessarily broad discretion is vested in said in their answer as statute stated legislature to determine not what follows: public required, the interests of the welfare is unreasonable and “The statute necessary but what measures are to secure regulate arbitrary it in that does not conceded, such interests. must be and by elimi- destroys legitimate businesses stated, regulation court has that a any operation at the nating funds for abridging restricting or of con freedom sales, making unenforceable time of regulating right engage tract or part of its the business any lawful business in a lawful manner performance. As for future contracts reasonably must be must reasonable and thereof, statute, part and each said accomplish promote pro tend to or void, unconstitutional, and unen- public. Regu tection and welfare of the forceable, dep- it to a in that amounts capricious lations are arbitrary or life, liberty property or rivation of unreasonably and which restrict or inter law, abridges process without due citizen, fere with liberities of the immunities of de- privileges legit accomplishing promoting a out or citizens, deprives de- fendants as power, object police imate are invalid equal protection law, fendants Gem violations of the fundamental law. all violation of Amendment Four- O’ State Mutual Life Insurance Ass’n v. Constitution, teen, United States 329; 427, Connell, State Idaho 320 P.2d impairs acquire, possess, right 130; 630, Finney, Rowe v. 65 Idaho 150P.2d protect property, deprivation is a 343, City Pocatello, 218 P.2d v. 70 Idaho equal protection laws, and is Koehler, Berry 84 Idaho 695. See also life, deprivation liberty proper- or 170, P.2d 1010. ty process without law in due viola- legislative whether the The concern is not 1, 2, tion of Secs. Article incidentally, di- action affects Constitution of the State of Idaho.” legis- indirectly, rectly but whether legitimate end and By allegations authority of is addressed to a *8 said lation ap- and taken are reasonable legislature is chal- the measures to enact said statutes Building & Home propriate that end. lenged. contracts; during Blaisdell, long interval be- U.S. S. Asso. v. Loan pre receipt purchase question price tween full of the and 413. The Ct. 78 L.Ed. challenged performance, possibilities sented is whether statutes insolvency, character, respect great fraud are risk and are so unreasonable consequent perform complained of, inability to tran inher- as the matters ent, pow legis- it is then police wisdom of the proper exercise of the scend the apparent. lation becomes er. contemplated by the contracts
It is not Lloyd Mr. testified further that Monarch delivery be of such here made involved that organized April 15, 1962 and June vault, casket, grave and memorial items as 10, 1963 it had sold for either or on cash memorial, rendered or interment services spaces, contract 422 adult interment “opening closing grave,” such as the price $100, sale of each not less than chapel or the the “use of the memorial placed only Monarch had in trust chapel tent, device, lowering greens, chairs sum of $120. provided equipment usually other as Appellants recognized have the need of purpose,” until for this protection some purchaser by for the in- purchaser. The de- after the death of the cluding in their certain form of contract livery property mentioned in provisions indefinite setting relative to “upon made contracts is to he Monarch aside a However, trust fund. allu- these request purchaser, of the or as- his heirs provisions sory perhaps purchas- furnish signs,” provided request made that such appeal, er provide pro- fail receipt “after of the full sum” contracted tection legislature which the deems the paid. Under situation warrants. it is connection required any expen- Monarch is not to make worthy of appellant note that Monarch request performance diture until after recognizes that abuses deficiencies purchase price and then after the full operations like legislative led to action. have paid. has been appellants’ In said instrument entitled Lloyd, president Mr. owner of sole “Endowment Care Trust In- Fund Trust Monarch, company’s that the aver- testified (identified denture” herein introduced age approximately contract runs four and as S), Defendants’ Exhibit bears years one-half to five before it out. date day April, 1962, the 16th it pay- we When consider that the contract vided : period ments are to be made within a short “WHEREAS, compared average lapse major of time to the de- performance cemetery of time until “pre-need” operation ficiencies of *9 provide failure to constitutionality
been the
funds suffi-
The
very
of statutes
adequate
insure the
maintenance
similar
cient to
to
here
the one
involved has been
cemetery
perpetuity,
property
cases, among
considered in a number of
deficiency
recognized
which
which
been
is Falkner v. Memorial Gardens
importance
major
by
Association,
number of
(Tex.Civ.App.
of
100
health,
prohibits
safety,
general
right
morals or
wel
act neither
to sell
City
community.
merchandise,
of Chi
fare
services
nor
Ry.
Chicago
cago v.
& North Western
scribes advance collections.
It does
Co.,
307, 317,
require
553.
funds,
collected,
122 N.E.2d
Ill.2d
that such
when
guarantee
not
purpose
does
be set
constitutional
aside for
for which
supervision
they
legislative
public
withdraw from
were intended. The
department
activity
and,
of human
securing
vital interest in
that result
making
con
rights
plaintiffs
in the
insofar
which consists
affected,
tracts,
power
deny
government
yield
those considerations must
paramount
provide
safeguards.
public
restrictive
to the
welfare.”
Liberty
implies
the absence
Corporation
Jones,
Vault
v.
Reserve
immunity
restraint,
from
arbitrary
1011,
225, (1962)
234 Ark.
S.W.2d
prohibi
regulations
reasonable
supreme
presented
court of Arkansas was
imposed in
interests of
tions
considering
argument
same
while
Christensen,
community. Crowley v.
validity
requiring
a like
statute
620;
13,
34 L.Ed.
137 U.S.
S.Ct.
funds
similar contracts
all
collected under
Quincy
Chicago, Burlington &
R. Co.
in trust. The court held
shall
held
549, 567,
McGuire,
219 U.S.
31 S.Ct.
unconstitutionally
does not
such statute
the exercise of
The contracts in do not Clearly undertaking Monarch un- statutory requirements with our and are pre- program der such is to sell contract or unenforceable. arranged prepaid funeral services or appraisal plan From an the entire funeral delivered at an merchandise presented by evidence, the trial court dependent undetermined future time concluded that involved are contracting party or his the death of the appellants “insurance” and since the have child. qualified applicable as insurers under In 63 A.L.R. it is stated that “while state, statutes the contracts void agreed wheth- the authorities are not as to and unenforceable. This finding burial er not a contract for assigned clusion as error. expenses nature an insurance 41-102,
Under I.C. defined § contract, majority of the cases answer as follows: *12 affirmative, regard in “ whereby ‘Insurance’ is a contract as See one of insurance.” 1453; indemnify
one undertakes to another also 100 A.L.R. 1243. A.L.R. Appellants argue opinion there is are since “We that that their practical operation is- the certificates price fixed fact element and the that impose sued the defendant will no must be the merchandise and services de- liability upon the defendant until the upon demand, necessarily livered and not This, death of the holders. certificate death, upon purchasers, the con- for the indicated. reasons above A like con- tract is insurance. v. Smith tention was considered State opinion “We further of that the Service, 41, 145 Funeral 177 Tenn. S.W.2d contemplated defendant never in the defendant (1940), which case the they issuance of these that which in issued two classes certificates would until the matured certificate of an substance stated that in consideration Otherwise, why holders died. the ad- sum, specified fol- installment in a monition on certificate 'at the time each sums, by weekly payments fixed lowed of death of named certificate the within agreed defendant an discount allow 80% notify Service, holder Funeral Smith regular price a casket selling from the Inc., at once.’ clothing purchased defendant from designated agent and re- anyone their undertaking “The in these contracts It also lated holder. certificate to embalm holders and the certificate embalm the would vided defendant prevailing furnish at hearse service hearse service holders and furnish certificate price, obligation to handle all price they agreed to prevailing at the promptly, details the funeral incident to funeral details to the handle all incident very plainly the defendant show that admonition promptly. It also contained contracting was reference the within “at the time of death death. Fu- notify Smith certificate holder named apparent “It seems to us Service, Defendants Inc. once.” neral at right given holder of certificate to a were not argued that herein the certificates coffin and defendant his to demand certificate insurance contracts since the grave his death is prior clothes representative call his could holder or right improbable exercise of such casket the defendants to furnish the regard the it does not what we alter clothing at cer- burial time while The effect real nature of the contract. force, tificate the death neg- will be on the course business required mature ob- holder was not reality ligible. The business considering ligation of defendants. insurance.” continue burial that of the court stated: contention
103 language in the contracts There some whether risk is assumed, involved or involved could be considered on which whether that or something else to viding plausibility appellants’ con- some which it is particular related plan principal it must conceded that object However be is its purpose.” tention. being pursued is the nature of a business “ * * * As said, we have it is the may things by the not determined plan whole, aas artificially not dis- by possibly or be done that business jointed segregated single phases of things may have been done. ” * * it, with we are concerned. determined rather usual course appellants not, have insofar as the Group particular In business. Jordan pleadings disclose, or evidence engaged in Ass’n, App.D.C. 38, Health 107 F.2d general undertaking business nor have (1939), where a like was they engaged in the manufacture or sale of considered, the court said: general acquired supplies, any burial “That an incidental element of risk the facilities therefor. The record shows may pres- assumption distribution or be furnishing caskets, memorials, that the ent outweigh fac- should not all other facilities, etc., the use of funeral only tors. If appellants attention is focused on to their during customers their feature, appellants’ lives is in keeping not the line usual between indemnity course of types legal and other business. this connection the following excerpt testimony arrangement and is an economic function be- from the person faint, respondents comes if not extinct. This is who sold their especially true contracts: when the contract for goods the sale of or services on “Q request ordinarily And would be
tingency. obviously But not it was at the time of death? purpose of the insurance statutes to Now, they “A if had wanted that regulate arrangements assump- all day casket delivered the after tion or distribution of risk. That view they signed contract, their we practically engulf would cause them to could have delivered it to their contracts, particularly all conditional home. contingent agree- sales and service “Q they signed After the contract? fallacy looking ments. The inis they it, yes, “A If wanted uh huh. element, at the risk exclusion present “Q all you others or their subordination Did ever have that done? question turns,
to it. The on “A They No. didn’t ask. any director). “Q you ever have and funeral The other Did certificate exception delivered? is similar in form with the memorials for. it name They “A never asked does not the value No. of the fur- nishing. Sales certificates were made you request “Q Did ever have a plan. installment In discussing the delivered ? of the vaults engaged contention that the is not it. They “A No. never asked for business, in an insurance the court stated: “Q you had Have ever that done? “ * * * we think the business “A No. clearly The contract evi- insurance. s-; sfc He # *14 by denced the certificate all of the request “Q never had a for You have elements of a life insurance contract. ? then, I it delivery, take a perform It agreement is an to a serv- “A No. obligatory ice can become they "Q you didn’t intend that And on the death of the certificate holder. ? would be delivered beneficiary promise is While no “A I sure didn’t.” named, exists, reality may be and one considered veryA of facts was similar set certainty as ascertained with as much Washington in supreme of by court the directly specifically if named. & rel. v. Casket State ex Fishback Globe person be is the who would otherwise P. Co., Undertaking 82 Wash. pay expenses the obligated to the of pre- principal issues (1914) and the one of may the heir estate burial. This be company the defendant sented was whether decedent, relatives, the his the Its business. engaged in an insurance was state; but, person may such whoever sale two to the business was confined be, obligation to the he is relieved of his performance, of certificates and the forms service the extent of value others, the ob- through agency the by agreed performed terms to be the thereby. ligations assumed There therefore the certificate. agrees, the certificate Under one promise by perform person a to holder, charge take “to on the death the an- death a service the valuable holder, provide said of the burial of paid for other, a consideration valuable materials necessary furnishing and the the promise, person to whom the and a ($100) of one hundred therefor to the value promise Had will inure. benefit of ” * ** Dollars, (then as follows: ordinary nomenclature insurance hearse, box, casket, car- person listed a an outside mak- designate been used to person ing promise, to whom robe, embalming, accessories riages, burial
1Q5 purchase remaining die made, person and shall before who promise $500) payments have been (aggregating promise, the benefit of receive made, obligated fur- Monarch would for the consideration regardless its nish the described casket that it promise, no one would purchased In fact it credit actual cost. But a contract. an insurance was guard against this risk. life insurance to from be determined tract Under the Services” certif- “Professional effect, the terminol- nature being icate risk of Monarch assumes the it. Here ogy characterize used to ‘insured,’ required pay substantially ‘insurer,’ more than $200 there is an spec- ‘beneficiary,’ we for the services and facilities ‘premium,’ therein and a ified to be furnished the final rites nothing else than a think the contract purchaser. “Family plain, ordinary contract.” Under the Secu- rity Agreement” it the risk of assumes Association, Inc. In Memorial Gardens purchaser, furnishing, charge free of Smith, supra, contracts wherein similar space interment deceased child of considered, being court stated: were purchaser was who at of death time “The here involved years age. (In unmarried and under 21 By analogous to a of insurance. form Staley purchaser permitted case life, pur- payments during made grandchildren list four as covered chasers seek to insure their burial. provision.) though net effect is the same a life *15 Our conclusion is that the instruments purchased insurance contract were to “Family Security Agreement” entitled provide payable a sum at sufficient “Professional are Services” insurance accomplish death to result.” that tracts and when all three of the instruments quoted foregoing language was with together here involved as are considered approval Corporation Vault v. Reserve embodying constituting be- the contract Jones, supra. parties, tween the such contract is insur- Whether there are sufficient elements in ance. a risk contract such as or benefits con- if tingent death, trial to determine entire Failure of the court render the provide depends contract one of on the the instruments here involved tp. title particular present of a the sale and transfer of such facts case. In the appel- requires property case Monarch in real assumes the risk under the interest Agreement” real estate purchasers agency “Sale licensed as a if' the lant be Obviously paid assigned days shall have within 31 of as error. broker is $373 106 question
trial court did not consider such regularly a licensed insurance to be a being payments vital issue in the with appellant. case made to the the same view Another we shall not consider it. The feature that has been considered judgment supplemental provision “Family of the trial court is affirmed. respondents. Security Agreement” Costs to obligates
appellant
provide
space
interment
free
McQUADE,
charge
J.,
in the
the death
concurs.
event of
respondent’s
children under
unmarried
age
provision
years.
is the
McFADDEN,
21
This
part
(concurring
Justice
only obligation
appellant
the con-
under
dissenting
part).
fully
appellant
tracts
will not be
wherein the
opinion insofar
majority
I concur in the
compensated
be
the merchandise to
question
as it
the contracts
holds
performed,
delivered and the
be
services to
provisions of I.C.
governed by the
§
relatively
importance
such a
54-1120,
such
through
and that
54 — 1117
§
alone should
minor nature that this feature
constitutional.
statute are
.sections of the
governing
not be the
determination
dissent, however,
portion
I
from
contracts as a whole.
opinion
the contracts
which holds
reaching the
opinion in
majority
an insurance contract.
constitute
consti
arrangement
conclusion that
refers
a contract for insurance
tutes
basically
my
It
conclusion that
Funeral
following
v. Smith
cases: State
here are contracts
contracts involved
41,
S.W.2d
145
(1940),
Tenn.
Service
177
providing
purchase
for the
of services
1021;
(1939),
Ass’n
Group Health
v.
Jordan
merchandise,
delivery postponed until
239;
rel.
ex
38,
State
App.D.C.
F.2d
107
71
recognized
that under
after death.
Undertaking
Casket &
Fishback v. Globe
contracts,
though less than
one of the
even
878;
124, 143 P.
(1914), Wash.
Co.
the contract has been
the full amount of
Association,
Inc.
Gardens
Memorial
death,
paid at
if
the time of
$373.00
587;
116,
N.E.2d
16 Ill.2d
(1959),
Smith
signature
paid
days
been
within 31
(1962),
Corporation v.
Vault
Reserve
Jones
-contract,
remaining will be
the balance
In addition
225.
234 Ark.
S.W.2d
however,
instance,
it
must
-in full.
ap
annotations
made to the
reference is
emphasized that this additional
1449-
100 A.L.R.
pearing
A.L.R.
at 63
provisions
comes,
reason of the
1453,
“A contract of insurance is an by party, ment which one for a con- In the case of State v. Funeral Smith sideration, promises pay money or to Service, supra, the form of the certificate equivalent, value or to do some act of detail, involved is not discussed in nor assured, upon to the destruction paid clearly. the consideration to be outlined injury, damage something in loss or out, however, pointed It is that: party an insurable other “The certificates substance of these interest.” obligation part is an of defend- The court stated: ant for the stated consideration [in liability is con- “The of an insurer pay- consideration of an installment tingent. contingency under our sum, by ment in a named followed statutory definition is ‘the destruction weekly payments of named sums] injury, damage something.’ loss or representative furnish its customer’s course, insured, life Loss of grave a casket and clothes for contingency is the in life insurance.” per twenty customer’s burial cent at Attorney In State ex rel. District Gener- (or per other cent) regular re- Ass’n, supra, Mortuary al v. Mutual price tail selling of such articles. In- before the court concerned stead paying certificate nature the business which the association representative money holder’s a sum of issued There a member was conducted. applied payment to be of funeral certificate under the terms of the expenses, the defendant substance promise pay future as- of a fee and a greater portion assumes of the ex- is- sessments levied. The certificate pense when of the funeral. Save one member sued the association entitled a respect, hereafter to be noted [that burial, including to receive a purchaser services may call defendant casket, although paid only as- he had furnish the clothing casket and at sessment. The “A member time], court stated: the contracts de- issued is entitled burial if he has materially fendant do not differ from *17 108
those considered in State ex
authority
rel.
note that as
for the
[Dis-
statement
Attorney
trict
quoted
v. Mutual
Group
from
v.
Ass’n,
Health
General]
Jordan
Mortuary Association, Inc.,
supra,
166 Tenn.
following appears.
the
260,
tracts have been in full. In State ex rel. Fishback Globe Casket v. 124, Co., Undertaking (1914) & Group The case 82 Wash. Health Jordan 878, 143 P. was the issue before the court (1939) App.D.C. Ass’n F.2d 107 enjoined appellant whether quoted majority opinion. should be been in its conducting from its business and have That whether case involved corporate up and its charter affairs wound group engaged health association was organized ap- company forfeited. The had been contrary the insurance business to the Washington under the with plicable laws of provisions insurance code of the purposes had a in its charter. It quotation outlined The of the District of Columbia. year existence, engaged selling solely majority opinion in the with a dealt provide for burial services. of certificates to determination of whether the association upon the opinion appears From it exempt provisions of was one under the after payment being made first installment applicable holding The ultimate statute. approved, purchaser’s application was par- effect that the the court was to the appellant bound to furnish was exempt under ticular association was are the installments in full. interesting services applicable When laws. It penalties providing ments and for violation incorporating all the fully a certificate paid, body opinion, the cer- thereof.” cost of is issued. agreements way discussed analogy, the Court deter- The court shown. is not tificate analogous engaged in nature of the contracts mining that did that Court to a form of insurance. But business, held an insurance insur- not hold such contracts life of a all the elements tracts had quoted in the pointed contracts and the statements the court Further ance contract. my case, majority opinion from that one the courts contract is out that the “ * * * analogy opinion, merely dicta used as an uphold. strain within determining that contracts were possibilities for freighted greatest * * * provisions adopted act. is limited to Its duration fraud. *18 * ** many that such decision a determination It that was not years. is certain
50 In- ripe form of insurance. were a not be for of certificates these deed, is no the “There years, and it Court itself stated redemption for a number of performance pay- company until full reasonably is certain that of them will some ment is under the corporation made contract.” itself. survive the life of the If, permitted therefore, were Jones, Corporation In v. Reserve Vault any business, to and all or con- continue the 225, 1011, (1962) 234 Ark. S.W.2d proportion these certificates siderable quoted Supreme at Court of Arkansas redeemed, were be a consum- ever it will length Memorial from the Illinois case of unique experience.” in mation human Association, Inc., Smith, supra, Gardens v. ques- Association, legislative in holding in
In Inc. act Memorial Gardens 116, question tion Again was (1959), v. Smith 16 Ill.2d N.E.2d constitutional. 587, question Supreme consti- whether the contracts involved before the Court tuted in question not a not issue. Illinois was whether was pre-need a form burial contracts were authorities, my It is conclusion that the insurance, simply but such contracts whether upon by majority opinion relied in deter- purview legislative were within the of a mining form of these contracts are a concerning enactment entitled “An Act insurance, applicable at the case are not to agreements delivery furnishing or per- bar. In instant action there is no personal property, merchandise or services appellant required formance until such disposition in connection with the final paid time as in full the contracts have been dead regulating human bodies and use or purchaser. but There is no disposition paid final, fixed, of funds agree- completed on said what there is a
price paid. my to be is paid further definite sum in payable con- hand in clusion that reasoning Supreme installments, agrees per- to render and Georgia Court of in the case of form per- South or cause be to rendered and Georgia formed, Funeral (1936), Homes Harrison purchaser any for the 183 Ga. 188 S.E. is family, correct. In member of his certain funeral Supreme services, that case the Georgia obligation Court with the additional held that a corporation, purchaser contract a wherein to allow the buy funeral paid for a fixed cash, sum in or in install- merchandise in connection with the ments, funeral, agreed price render funeral services a definite ascer- purchaser family to a performance or a tainable. his While member of the purchaser buy and to upon death, allow the contract is contingent funeral price, merchandise did and of for definite not con- itself does make it contract, stitute insurance, a life insurance tract of life notwith- nor does standing performance fact that contingent payable sum fixed payable death and installments. nothing the consideration was There any contract itself coming installments. that conclu- nor is there evidence sion the by pur- court stated: show the amount chaser less than the value “ * * * It will thus be that no seen per- funeral services contracted to be definite can ar- line of demarcation formed, or that there element of drawn, bitrarily must each contract involved, part risk either on the itself, together be construed unto purchaser or corporation. the defendant itself, evidence dehors the contract ap- face on its does not partic- order to ascertain whether the *19 * *” pear be one of life insurance. ular contract under consideration is one my It conclusion that these are not of life We insurance or otherwise. “ * ** indemnify another said, however, safely think it can be ** * pay specified or ascertainable that a of life insurance must contract an in so far as contain element of risk risk amount or benefit determinable particular by contingencies,” contract individual as insurance is defined 41-102, in- concerned. The contract now in the nature of I.C. but are § defendants, purchase of mer- reason contracts for sold stallment my further contempt pro- chandise services. the sale this of which in de- court erred ceeding arose, de- conclusion that the trial is one wherein termining insurance. form of corporation, fendant fixed and for a
ni however, reversed, not be The cause should within this form 54-1120,
purview 54—1117to of I.C. §§ constitutionally enacted law.
is a SMITH, JJ., concur.
TAYLOR P.2d 31 Plaintiff-Respondent, BOONE,
Delbert Inc., COMPANY, some- LOGGING
P B& Milling Company, B P & times known as Perrault Inc., known and sometimes Company, Logging Stit- Bernier Idaho, Inc., zinger Company De- Lumber fendants,
Stitzinger Company Inc., Idaho, Lumber Defendant-Appellant.
No. 9479.
Supreme Court of Idaho.
Nov. 1964.