As shown by the opinion rendered on a former day in this cause, the appellant collected the first premium under an application for a burial benefit contract which provided that the same should be in full force and effect on the 1st day of February, 1936, and the receipt for such premium given by the agent specified that the payment was to cover the first month's dues. That is to say, the premium covered the period of one month beginning at midnight of January 31, 1936.
The case was tried on an agreed statement of facts, and the application, receipt and the policy contract were introduced as exhibits thereto. The policy bears date of February 1st, but the record is silent as to the day or hour when it was placed in the mail. It appears from the application, wherein the occupation and address of the applicant is given, that the assured lived at Vaiden, and that the home office of the company is at Grenada. The application states that the assured is a farmer, and we assume that he lived out from Vaiden, since it would be unusual for a colored farmer to live in town. Since the application covered two other members of the applicant's family, including Charlie Wortham, alias Charlie Curtis, whose body was shown to have been in the undertaker's establishment as early as 7 o'clock on the morning of February 1st after he had been shot and killed on *Page 465 the same morning, there was a recital in the agreed statement of facts in reference to the delivery of the policy to the applicant and to the effect that "it was not delivered until after the burial through the mail to him." We are unable to determine from the entire agreed statement of facts whether the above quoted statement means that the policy was not placed in the mail at Grenada until after the death and burial of Charlie Curtis, or whether this language means that it was not received by the applicant out of the mail at Vaiden until after such death and burial. From the entire record, we are of the opinion that the statement is subject to the latter meaning. At any rate, since the policy sued on shows on its face that it should be so construed as to take effect at the earliest moment of February 1st, and it appeared that Charlie Curtis came to his death between that time and 7 o'clock in the morning, we think that the burden was on the appellant to establish as an affirmative defense that the policy was not actually placed in the mail until after his death. For aught that appears from this record, the policy may have been filled out, signed and placed in the mail on the day before, even if it be true, as argued by appellant, that the company had all of the entire day of February 1st to issue the same. The fact as to when the policy was actually placed in the mail was presumably within the knowledge of the appellant, and this fact should have been clearly recited in the agreed statement of facts or established by the proof.
For the reasons above stated, we have reached the conclusion that the judgment of the court below was correct without reference to the ground on which the former opinion rests, and that therefore the suggestion of error should be overruled.
Suggestion of error overruled. *Page 466