157 So. 320 | La. Ct. App. | 1934
Defendant first pleaded that the membership certificate held by plaintiff was null and void, ab initio, and without binding effect on it, because its consent thereto was procured by the deception and misrepresentations of plaintiff regarding the good health of her said husband when membership was applied for; and that its agents did not have, by the exercise of reasonable diligence, opportunity to ascertain the true conditions of the health of deceased. Secondly, it denies that it had any arrangements with McCook Brothers Funeral Home, Inc., whereby it was obligated to perform the service and furnish the funeral habiliments, etc., mentioned in the certificate. Thirdly, defendant denies that plaintiff, or any one else for her, notified it of the death of her husband, or made demand upon it to furnish the burial equipment and perform the services provided for in said certificate. It is admitted by defendant that an agent of said McCook Brothers Funeral Home, Inc., on the day of the death of Mr. Winders, communicated with an agent of defendant in Monroe, La., by long distance telephone, and from him learned of Winders' death, and not knowing that said membership certificate was null and void and without effect for the reasons above set forth, defendant's said agent in Monroe did communicate with one of its agents in Shreveport and to a duly authorized and licensed undertaker, and through these agencies defendant, being ignorant of the nullity of said certificate, did offer to furnish casket, burial robe, hearse service, and to conduct the funeral of said Winders, and would have so furnished said goods, merchandise, and service if plaintiff had agreed to deliver his body to the undertaker agent of defendant, which she did not do.
It is further averred that said membership certificate would not have been issued to plaintiff if she had truthfully stated the condition of the health of her deceased husband, and that she knowingly made false statements relative thereto. Liability to plaintiff on any account is denied.
Plaintiff was given judgment as prayed for. Defendant prosecutes this appeal therefrom.
In her application for membership in defendant association, plaintiff certified that each member of her family listed therein "is presently in sound health." The application contains the further statement on her part that if there are any misrepresentations therein the membership certificate shall be void, and no benefits thereunder shall accrue to her or the other beneficiaries named therein.
It is admitted by plaintiff that her husband was not in sound health when the application for membership was signed by her and accepted by defendant, and that he died of the malady from which he then suffered, within six weeks after the certificate issued. It is shown, however, that defendant's agent, who solicited plaintiff to join defendant's association, was made aware of deceased's poor health, and that he had ample opportunity to acquaint himself with the true facts of his physical condition. He collected one month's dues from plaintiff after certificate was delivered. No medical examination was made of deceased by a physician. The application was not attached to the membership certificate.
The charge of fraud and deception against plaintiff is not sustained by the testimony. Regardless of all this, plaintiff's contention is that since no medical examination by a physician was made of deceased before the certificate issued, and the application for membership not being attached to the certificate, the door is closed to inquiry into the *322 condition of deceased's health when the application was made or certificate issued. We think this position well taken.
Defendant is engaged in the business of industrial life insurance, as defined by Act No.
It is now well settled that Act No.
In the case of Jackson v. Unity Industrial Life Insurance Co. (La.App.)
And again, on same subject, in McBride v. Acme Industrial Life Ins. Society (La.App.)
In this case the court reaffirms its prior decisions construing the statutes pertinent to the question discussed, and cites numerous cases of the Courts of Appeal and Supreme Court in support of the holding. We concur with our brothers of the other Appeal Courts in their interpretation of these statutes.
We do not think the other defense advanced by defendant tenable. Its obligation was clearly to promptly take charge of the body of plaintiff's husband and prepare it, or have it prepared, for decent interment. He died in his own home in the city of Shreveport, at 12:40 p. m., on a Sunday. The matter of the arrangement of details looking to the preparation of the body for burial was intrusted to a man by the name of Taylor, a neighbor of deceased. He carried the membership certificate held by plaintiff to an undertaker of the city, who declined to undertake the performance of the duties devolving upon defendant therein, but referred Taylor to McCook Brothers Funeral Home, Inc. He then went to defendant's office in the city of Shreveport, and found the door open but no one in. After some futile efforts to locate a Mr. Cloy, local manager for defendant, he proceeded to the McCook Brothers Funeral Home. From there defendant's main office in Monroe, La., was rung. The president answered. He was informed of Mr. Winders' death. He promised to ring back within thirty minutes and give Taylor some instructions as to the handling of the body, but, after waiting for an hour, no further news came from Monroe on the subject. It was then 5 o'clock p. m. Taylor then authorized McCook Brothers Funeral Home to take the body and prepare it for burial, which instructions were promptly complied with. Thereafter defendant's representatives called at plaintiff's home and at McCook Brothers place and indicated that they were willing to perform the obligations of the membership certificate, but as matters then stood neither the deceased's family nor the Funeral Home seriously considered such overtures.
The fact is, defendant's main place of business was in the city of Monroe, La., over one hundred miles from Shreveport, and it had no equipment whatever in Shreveport needful to the preparation of a body for burial or to the conducting of a funeral. Its officers admit that in the present case they would have had a hearse drive from Farmerville, La., to Shreveport, over 100 miles distant, to *323 remove the body to some undetermined place in order to prepare it for burial. The family had waited over four hours on defendant to comply with its duties, and certainly could not have been expected to wait three more hours for the hearse to drive over from Farmerville. The hearse did not arrive in Shreveport at all; and after experiencing such unpleasant hours and inexcusable delays, it is wholly unreasonable to have expected the family to be further embarrassed by having the body of the father and husband removed from one funeral home to another place, which, as said before, was then wholly undetermined. There was an implied obligation of the most solemn character in this membership certificate that the deceased's body would be promptly removed from his home, after death, to a decent place where the bodies of the dead are prepared for burial, and that such be done efficiently and with no undue embarrassment or mortification to those in grief. Defendant was certainly not in a position to do these things. It had agreed to do something it could not well do in Shreveport because of lack of any equipment. And not having arranged for a competent undertaker to do that which it was obligated to do, and plaintiff having acted in the matter as she was warranted to do, defendant is responsible for the expenses incurred. These, as stated before, are clearly shown to be reasonable.
Judgment affirmed, with costs.