Case Information
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THEA-JT~RNEY GENERAL Opinion No. O-2749 Re: Would it be permissible Commissioners inaustin, Taxas Insurance Department issue a permit under Attention: Mr. J. J. Timmins association law and allow tomb- stones as merchandise? Gentlemen8
Your request for an opinion has been received and care- fully considered by this department. We quote from your request
“I am enclosing letter received . asking the procedure to be employed for securing a charter Srom the Board of Insurance Commissioners for a burial and allow them to furnish merchandise con- sisting of a tombstone, in an amount not to exceed $1.50.00. check Senate Bill 135, &cts of the Forty-
“Please Sixty Legislature, particular, Sections 23 and 24 thereof, and advise this Department if, in your opinion, it would be permissible this Department issue a permit under law and the asso- ciation tombstones as the merchandise.” 23, and 25 of Senate Bill 135, Hcts of the
Sections Forty-sixth Legislature of Texas, read as follows:
“Sec. Burial Association. Any individual, in- dividuals, firms, co-partnerships, corporations or asso- ciations doing the business of providing or fun- eral benefits, able partly which under any circumstances may be pay-
or wholly in merchandise or services, not in excess of One Hundred and Fifty ($150.00) Dollars, or the are hereby declared to be-burial companies, thereof, and shall organize under pro- or societies, visions of Chapter 2’74, Acts of the Forty-first Legisla- ture, 1929, and amendments thereto; and shall operate un- der and be governed by Chapter 274, ,acts of the Forty- first Legislature, 1929, and amendments thereto, -and this act, It shall be unlawful for any individual, indivld- uals, firms, co-partnerships, corporations, or associa- tions, other than those defined above, to engage *2 business of providing or funeral benefits, ~which under any circumstances may be paid wholly or partly merchandise or services .I1 24. Policies or certificates issued by bur-
Vet. ial associations shall provide for payment of the benefit in certain stipulated merchandise and burial service, which shall be scheduled in the policy or c,ertificate approved by the Board of Insurance Commissioners .as being of the reasonable as stated in the face of. the pol- icy, unless insured shall the time said’policy issued elect to have same paid in cash. The policy shall showy in writing the election made.
issuing said policy fail or refuse
merchandise and services provided in the policy, same shall be paid in cash. II
“Sec. Rules and Regulations. The Board. is here- by authorized to promulgate reasonable rules and regula- t ions to carry out the purposes o,f this Acts.”
9 Corpus Juris, Page 1100, define,s term “burial” as ,follows:
“Burial. The act of .interring the dead.” Words and Phrases, Vol. Permanent Edition, Page 961, defines term llburialll
!‘Word ‘burial1 means act of burying a de~ceased person, sepulture, interment, act of depositing~~a dead boty in the earth, in a tomb or vault,~ or in the water; the act of in- terrin the human dead. s . Brady v. Presnell, 169 S.E. 278, 2 0, 204 N.C. 659.”
27 Corpus Juris, ‘Page 929, defines the, term “funeral” as 1111;s : ”
“Funeral.. The disposition of human bodies after death, with the accompanying rites and ceremonies.*
1 Joyce on Insurance 7c defines as “a contract based upon a legal consideration whereby’the obliger un- dertakes the obligee, or one of then latter’s near rela- tives,, at death, a burial reasonably worth a~ fixed -.sum.ll Also see the cases of Sisson, et al.; vs. Prata Undertaking Company, 141’ A. 76; State Company, 143 P.,,878; Renschler ex rel Fishback VS. Globe;Casket and Undertaking
VS. State ~107 N.,E. 758. , Burial associat,ions are associations which provide of its members. See the case of, State ex rel Coleman *3 vs. Wichita Mutual Burial Association, 73 Kansas 179, 84 Pa- cific 7579 quote from the case of State ex rel Fishback vs.
We Globes Casket and Unde’rtaking Company, 54 L.R.A.N.S. pages 977, as follows: 978, and 979 . These certificates are in two forms. I, In the
one the corporation agrees, on the death of the holder, ( to take charge of the burial of said holder, and pro- vide the necessary furnishing and materials therefor to the value.of one hundreds ($100)~ dollars One black broadcloth; white or colored plush casket; one out- side box for. casket; one hearse two carriages; one burial necessary accessories; and robe; necessary embalming; services ~of funeral direct or. t The other is similar in form, with the exception it does not name the value of the furnishings, and provides the corporation will take charge of the funeral of the holder ‘on the sur- render of this receipt,’ 2nd will furnish the hearse and two carriages in places~only where they are obtainable.
“That contracts of the nature of the contract here in question are ,insurance contracts, and subject to con- trol under insurance statutes, the general trend of ,authority. In State, ex rel. Coleman v. Wichita Mut. Burial iisso. 73 Kan. 179, 84 Pac. 757, the organization in question was one estensibly to secure the members th,ereof a decent burial. The expenses were defrayed by assessments levied upon the members. Two classes of cer- tificates were issued,. one entitling members to a funeral worth $100, and the other a funeral worth $50, accordingl,y as they paid the greater or lesser assessment. It was through whom alone burials organized by an undertaker, could be had. The court held an insurance company and subject insurance laws of the state. ‘We conclude Passing upon the question, the court said: foregoing facts the ‘business designed to be transacted under the’ plan of the ‘d\richita Mutual Burial Association ,is, plain,, ordinary insurance e Membership this of age that which insures ‘to each member above ten years
is equivalent to $100 cash, payable the death of such member to whomsoever would otherwise defray the ~burial expense,s of such decedent. the cer- tificate of membership issued by this burial be designated a “policy,” the assessment a “premium,” those who are relieved from paying funeral of the deceased member “beneficitiries,lT this association, both in general plan and phraseology, would be a substan- ‘tial duplicate of the. ordinary mutual company.
Board of Insurance Commissioners,
The fact that no beneficiary is specifically named de- since in reality one exists, serves little consideration, and may be ascertained with as much certainty as if di- mentioned. Whoever would other- rectly and specifically wise pay the burial of the deceased member is, by being relieved of that burden, as directly benefited the amount of such expenses as if the cash were paid immediately to such person. the deceased member leave an estate, the whole thereof, undiminished by the burial expenses, which would otherwise be paid therefrom, will be received by his heirs. If he leave no estate, then his Immediate relatives and friends, who would otherwise have the expenses of his burial, will be bene- fited by being relieved of that burden.’
“To the same effect is the case of-State v. Wlllett, 171 Ind. 296, 23 L.R.4. (N.S.) 197, 86 N.E. in which the court used the following language: ‘The contract was issued by an association whose declared object was to se- cure or make certain, by a system of mutual contribution, to each member of the association, at death, the specific benefit of $75 for application to his burial service.
This was indemnity or security, that, at the cessation life of the member, a certain sum of money would be payable by the association for his burial, whether deceased had paid one assessment or a thousand. The con- trolling elements of the contract, as interpreted by the by-laws, are in all material respects similar those of an ordinary mutual life insurance company , . . is simply a business enterprise in which in consideration the contract holder is promised a definite thing of his per- formance of a definite undertaking on his part. .I1 24 of Senate Bill 135 of the Forty-sixth‘Legis-
Section lature issued by burial of Texas, supra, provides that llpolicies -or certificates shall provide for payment of the benefit in certain stiaulated merchandise and burial service, which shall be Scheduled in he ~olicv or certificatg aonroved bv the B ar o f r as being of the reasonable as stated in the face of the policy, unless insured shall time said policy issued elect to have same paid in cash.” The statute also provides that the policy show the election made, and provides if fails or refused the merchandise and serv- ices provided the policy then must pay the benefits in cash.
We have been informed by the Board of Insurance Commis- sioners they have a proved many policies of burial as outlined by Section 2 f: supra, providing for certain stipulated items of burial and funeril merchandise and services. The Board
furnished us with a copy of a certificate or policy of a burial association which contains benefits usually listed by burial and approved by the Board. Such stipulated merchan- dise and servi,ce are as follows:
“BENEFITS
.~, ~... “The funeral service and merchandise covered un- der this policy consist
1. Casket and substantial outside box, casket to be octagon end, oval top hinged cap, made of cy- press, wood, covered with crepe, lined with silk, trimmed with full length extension handles.
2. Care and Preparation of the remains.
3. Burial Garment, either suit or dress.
4. Door Badge Casket Veil, Pallbearers’ Bouton- n~iere s , Press Notice;, Use of Funeral Chapel if desired, or services conducted in home or church if preferred, and Memorial Record Book.
5. Cemetery and Funeral Equipment. The above does not include cemetery fees and expenses.
6. Transportation of flowers, metal grave markers, and floral acknowledgment cards. Use of Hearse Service to any point within a ra-
dius of seventy-five (75) miles of Austin, Texas, this service to include transferring remains the home, hospital, or point of death the Funeral Home; return to the home, the Church or Chapel and to the cemetery.” The above listed items of burial merchandise and fun- eral services would provide a respectable for a deceased person. not pay is our opinion a burial which does
its benefits in cash must furnish such merchandise services as would provide a respectable its deceased member.
We are also of the opinion the various items burial merchandise and funeral services are not separately a proper item of burial insurance, to say, we do not think an association which agreed a casket alone, or a shroud alone, or clothing the deceased alone, or hearse serv- or embalming service alone, for a regular premium, ice alone, would be a burial and should not be granted a char- ter or licemse as a burial association.
Board of.Insurance
Tombstones or monuments are erected the grave of a deceased person the purpose of marking his grave, and for the purpose of perpetuating the memory of said de- ceased person. Strictly speaking, the erection of a tombstone or monument is no part of a burial. However, our courts Texas have frequently allowed as funeral expenses in the set- tlement of a decedent’s estate the erection monuments and tombstones, dependent upon the condition of de- cedent’s estate. is our opinion you describe
in your letter which pays its benefits in tombstones alone not a burial and should not be aranted a permit as such.
Very truly yours ATTORNEY GENERAL OF TEXAS /s/ By Wm. J, Fanning Sm. J. Fanning, Assistant APPROVED OCT 16, 1940
Is/ Grover Sellers
FIRST ASSISTANT ATTORNEY GENERAL
APPROVED: OPiNIOE COMMITTEE
BY: BWB, CHAIFLMAN ~.
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