ARK.] ARKANSAS BURIAL SOCIETY V. HOUGH. 1105 ARKANSAS BURIAL 'SOCIETY V. .11.0UGli. • , Opinion deliv6ied 3, 1937: CONTRACTS — REASONABLENESS-7CONSIDERATION. A , burial association!s contract for notice of death within a : certain time, there-. after must be reasonable and based uPon a'. consideration. 2. CONTRACTS—RIORT To tENEFITS.—LA' buriai aSociation's contract : providing for $100 benefits' on-the : death of its CertifiCate-holder where it rendered the' required services and $50 where the services were rendered ,by some other . mortuary . gave..the , right tp select, a mortuary other than the one named in the certificate., CONTRACTS—BURIAL: AssoCIATIONNOTICE.--. -Where' a" burial as-, sOciatioR's 'cinitract proVidecrfor rintice of i deith within 24-houri
1106 ARKANAS BURIAL SOCIETY V. HOUGH. [193 thereafter and its office was closed so that such notice could not be given, held that motice of the death published in the. paper in the same city within the required time was sufficient. 4.. EVIDENCE—BURIAL ASSOCIN P IONS — INSTRUCTIONS.—Permitting ari-pellee to testify that he had not read the burial certificate which appellant issued to him could have .resulted in no prejudice to appellant . where the court instructed the jury that appellee was charged with notice of the provisions of the burial certificate issued to him 'and that he was bound by the terms , thereof whdther he read 'the same or not: 5. APPEAL AND ERROR.—Where, in an action on . a burial certificate, there was evidence to sustain a verdict in favor of.appellee, there was no error in refusing to instruct a verdict for appellant. Appeal from Sebastian Circuit Court,Vt. Smith trict; . J: Sann Wood, Judge . ; affirmed. * • • Paul W olf e and Hardin (6 Barton, for. *appellant; Daily <6 Woods, for appellee. - • MEHAFFY, J. 'This 'action was begUir in themunicipal court of the city Of 'Fort 'Smith by . the appellee against ihe appellant to recover the sum . of $90. .The CornPlaint alleged that 'appellee was a citizen and resident of Fort Smith, Arkansas; and the appellant is a corporation organized and existing under the laws of the State of Ark-ansas, with its principal place of business in the city 'of Fort Smith ; that in August, 1934, in considerbtion of dues paid and agreed.to , be paid, the . appellant- i§sued to the appellee its certificate of membership, No. 1070, by the terms of which it. covenanted and agreed that upon the death of Alice Hough, the mother of appellee, the appellant would. pay as a funeral benefit, to,..the appellee, the sum of $100, if the funeral of said decedent was conducted by the Fentress Mortuary of Fort Smith, Arkan-sas, and the sum of $90' in the event the funeral of said decedent was conducted by any other mortuary. It alleged' that appellee had performed the coverints 'and agreements contained in the certifiCate of. Membership, and that on April 2 , 6, 1936, the said Alice . Hough, mother of the appellee, died in Sebastian . county-, Arkansas ; that the appellee had made demand . on the appellant for payment of $90, and that :appellant failed and refused to make 'said . payment. . It was alleged that the apPellant is engaged in_writing insurance, and that the certificate ot
ARK.] ARKANSAS BURIAL SOCIETY V. HOUGH. 1107 membership sued on is a . contract for life insurance. He, therefore, prayed for judgment for $90 with interest, and 12:per cent. penalty and attorneys' fees. The municipal court rendered judgment in favor of the appellant and an appeal was prosecuted : to the circuit court of Sebastian county, where there was a vet.- diet and judgnieht in favor 'of appellee for . $90. The appellee moved for judgment for the amount of verdict and 12 per cent. 'i)enalty r and a reasonable attorney's fee to be fixed by the Court; Tho court held that the plain.- tiff was only entitled to' : a judgment for the amount of the verdict: The case is here On atipeal: On Atio hSt 23 1934 the aPpellant issued to ,615pellee a certificate of meinbership in the ArkanSas BUrial Society., Thig , 'certificate provided that the appellee WaS the oWnei of ohe mellibershiP in the Arkansas Burial SoCiety and that the following members of his family are entitled to' funeral benefits in ihis society, and among others includes Alice Hotigh, mother of apriellee, benefits, $100. The certificate recites that it iS issued Subject to the sighed application and the by-laws and the laws of Arkahsas governing burial societies, all of which it is eXpreSsly agreed are integral parts Of this Certificate, and the Contract betWeen the certificate-holder and the society. It then provides for 'the paYment by appellee of $9.75 rler 'year. One of the by-laws printed on the back of' the certificate reads aS follows: "Certificate-holders . shall notify the secretary-treasurer of the soCiety or the Fentress Mortuary immediately after any death, and failure to do so within twenty-four hours shall forfeit all rights Of benefits in relation to said death." . The by-laws provided that , the benefits are prOvided on the following schedule: "Dependents, age 61 and above at admission, $100, provided the same are furnished through , the Fentress: Mortuary of Fort Smith, Arkansas. If furnished through another mortuary chosen by the holder hereof, then ninety (90) per cent. of benefits is provided." .
1108 ARKANSAS BURIAL SOCIETY V. HOUGH. [193 The appellee was the beneficiary under said certificate. Alice Hough; the mother of appellee, died on April 26, 1936. Appellee; shortly after the death of his mother, attempted to notify appellant of his smother's death by calling its office over the telephone. Ile received no response to his call, and a little later on the same morning again attempted to call the appellant over the telephone, and again received no response. The mother's funeral was conducted on the afternoon of Monday, April 27. On Tuesday, April 28, appellee sent the certificate to the office of appellant. The following day, the 29th, appellee went to the office of appellant and met Mr. Stackable, the secretary-treasurer, of appellant: They had a conversation in which . Mr. Stackable said that -the demand for payment was out of order, and that he had not had any notice, and that he would take it up with the board of directors. A day or two iater appellant's attorney, called the appellee and informed him that the board of directors of the society had definitely declined to pay his claim. By-law 3 provides that the benefits shall be $100 provided the same are furnished through the Fentress Mortuary. If furnished through another mortuary chosen by the holder, then 90 per cent. of benefits is provided. In other words, if furnished by the Fentress Mortuary, $100 would be the amount of benefits, and if furnished by .any other mortuary, $90 would be the amount of the benefits. The facts in the case are practically undisputed. It is contended . by the appellee that the appellant is an insurance company, and appellant contends that it is an investment company. We find it unnecessary to decide this question. The only question for our determination is whether, under the contract, appellant is liable for the $90. Appellant contends that the notice required by the by-laws was not given within the time specified, and cites a great many authorities. These authorities, however, are cases where the contract of a carrier with the shipper was involved. The court held that all these
ARK.] ARKANSAS BURIAL SOCrETY V. HOUGH. 1109 contracts were reasonable, but these authorities, also, hold that they must not only • be reasonable, but based on a consideration. The usual form of contract in the cases referred to is that the carrier will not be liable for loss or damage to property unless notified within a certain number of hours. These contracts were all based on reduced rate, that is to say, that the carrier shipped at a redUced rate because of the stipulation. Moreover, the reason for the contracts was that after the goods were delivered the carrier should be notified within a reasonable time of any claim the shipper had 'so that it might make investigation before the goods were removed or before it became impossible- to get the evidence as to the damages. Some of the contracts in cases cited by the appellant were held unreasonable, but a contract of this kind must be. reasonable and based on a consideration. Appellant argues that its obligation was to furnish services and supplies for the burial of the party and there was no intent to pay the certificate-holder money, and that a condition precedent to the obligation to furnish the benefits, services, and supplies, depended upon notice provided for rn in the Contract, and it is argued that this provision was plainly to enable the society to prepare and provide such benefits. It is true that the contract provided that the appellant would furnish mortuary and burial benefits, but it also provided that if the mortuary and burial benefits were furnished through -any mortuary except the Fen-tress Mortuary, the holder thereof should receive $90, or the appellant would pay for $90 benefits. The contract clearly gave the appellee the right or option to select a mortuary other than the Fentress. The evidence conclusively shows that an effort was made to natify appellant shortly after the death of the mother, and that failure to notify it was because there was no one at its office to receive the notice. Moreover, the morning after her death, and within *the 24 hours,_ the notice of her death was published in the Fort Smith paper, and the appellant had notice of this. It, therefore,
1110 .ARKANgAS BURIAL' . -SOCIETt :v. HOUGH. [193 knew that she 'had . died and no purpose could have been served by giving the notice: • f` Generally a person can . be Said to have notice of. a fact only when it is actually communicated to him in such .a,- way that:his mind could : and did take cognizance of it. •And, ,of course,..when a person knows of. a thing he has 'notice?. thereof, as . no„one needs notice. of what he already knows: :While extrajudicial; proceedings,- or proceedings..without jurisdiction,-do not operate as constructive , notice, yet, ;express , -notice -,obtained from such proceedingoperates- the same..as notice obtained in any other . manner. " St. , L.. S. F. Aw Co. .v::State, 179. -Ark. 1128, 20 S. W. (20) 878.,.. • • It is next ,contended . by the appellant that. the court erred itt permitting the..appellee to testify that. he had not read the contract,.or policy, or•certificate. No prejudice could have resulted from this evidence, even if it had been . incompetent, because, at the request; of.appellant, the .. court.gave. to. the jury the following instruction: "You are further instructed. that the plaintiff is charged With 'notice- of the provisions Old. termS . , of' the. Burial Certificate issued to him; and that he . is bound , by:the terms of said , certifiCate , regardless of whether he 'read the sanie . or 'not. , : . • 'It is, also, contended by the, appellant, that:the court erredin .permitting . the- appellee , to testify that he: sent his. brother to the :office of the . association, and, .also,.that 'the , court erred-in permitting appellee to testify , as to.his conversation . with Stackable. There , was i Tto , error in ;the court's permitting this testimon. It is next contended that. the court erred in refusing the request for an ; instructed verdict. , The facts, as , we have already said, are. practically undisputed, and,there is ample evidence to sustain the verdict. . 4ppellant contends . that: instruction No. 2, given -at the:request of the appellee,, was .erroneous. told the jury in „effect, that if . the ,appellee., took- such Steps , .to .give notice as,a reasonably prudent man would have taken . tmdcr: all the circumstances, .and . if ,they further found that appellee's ; failure .to give notice was . the
ARK.] failure of the appellant to maintain at its office or place of business a persolu to receive such notice 'within the time prescribed -by .the by-laws, 'then they would•find -for the appellee. The court did -not err in giving this instruction. In the first place, if the appellee did what a reasonably prudent udan would have done under the circumstances, it was .all the law required ;'*and..in the second place, a§•we have already , said, the appellant had actual notice. • • There are some other objections : argued to the in= structions, but . after a 'careful consideration, we 'have reached 'the conclusion that.:the s histrUctions as .. a whole properly submitted • the t issues- to • the jury, and it would serve ho useful- purpose to' dicu§s them in : detail. - ' The judgment Of the circUit court is affirined;
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.