85 So. 553 | Ala. | 1920
Originally the Grand Lodge of Alabama, A. F. A. M. (Colored), was named as the sole defendant. When the suit was brought, 1909, the so-called defendant was an unincorporated association and could not be sued as such. Moore v. Burns,
A deposition was taken before the amendment noted supra. This deposition would have been suppressed on timely motion. Henderson v. Hall,
There is no need to go into a detailed consideration of pleas 4, 5, 6, and 7, to which demurrers were sustained. The defense set up in these pleas was, without the requirement of unnecessary allegation, heard under plea 8. In fact, the only issue contested between the parties was stated in its simplest form in this last-mentioned plea, so that, if there was error in the rulings on pleas 4, 5, 6, and 7, it can avail appellants nothing.
Plaintiff, appellee, claimed to be the designated beneficiary of one-half of the policy, or benefit certificate, in suit. She claimed by designation of the insured, properly made known before his death to the association in which he was insured. She testified to nothing within the ban of section 4007 of the Code. She testified to a conversation with one Nelson, who was worshipful master of the lodge of which deceased had been a member, and to which it was necessary, it seems, to give notice of the change of beneficiary under which appellee claimed; her testimony tending to prove the receipt by Nelson of a letter constituting notice that insured had changed in part the beneficiary, but there was nothing in that contrary to the statute.
Secondary evidence was received, over defendants' objection, as to the contents of the letter which plaintiff claimed had been sent to Nelson. The letter, according to plaintiff's evidence, had been written and mailed, postage paid, to Nelson at his post office; but defendants denied possession or knowledge of it. Nelson was not a party to the cause; but he was present at the trial, and plaintiff should have shown an effort to have him produce it preliminary to evidence of its contents at secondhand. Mordecai v. Beal, 8 Port. 529; Laster v. Blackwell,
The question as to whether the amount paid to Hattie Wright, widow of the insured, was in full of his certificate of insurance, was irrelevant to the inquiry whether one-half the certificate had been made payable by insured to plaintiff, who was his mother. If plaintiff was entitled to one-half the proceeds of the certificate, her right could not be affected by a transaction to which she was not a party.
The answer to the question made the subject of the sixteenth assignment of error was in the negative, and harmless to defendants.
The by-laws of the association required that every holder of a certificate of insurance should file a certificate designating the beneficiary; the form of the certificate in use showing that it was addressed to the worshipful master, wardens, and brethren of the lodge of which the insured was a member. We think there was no error committed when the court charged the jury, in effect, that notice (of a change of beneficiary) to the worshipful master of insured's lodge was notice to "defendant." Whether there was such notice in fact was left with the jury; it was in fact the only controverted issue in the cause.
The argument in support of the assignment of error based upon the overruling *216 of defendants' motion for a new trial reiterates the alleged errors to which reference has been made, and in addition suggests that defendants were not shown to have been members of the association at or before the death of the insured. It is true that no question was asked of any witness on this point, and the contention here seems to be an afterthought; there having been no specific question on this point made in the motion. Defendants did, however, allege in their motion that the court had erred in refusing their request for the general charge. Whatever may be said as to the case of the individual defendants, other than H. C. Binford and H. C. Harris, the jury may have inferred from undisputed correspondence in evidence that the named parties were members of the defendant association, and as such liable in plaintiff's action. The general charge, therefore, in the comprehensive form requested, was refused without error; nor have the separate cases of the other individual defendants been presented by any separate assignments of error here or in the motion for a new trial. Having thus throughout made common cause with defendants against whom a verdict was warranted, these defendants, last referred to, cannot now have the benefit of a difference in their cases to which attention has never been called.
We have stated our consideration of all assignments of error deemed of sufficient importance to tolerate separate mention. The rest need no separate consideration.
Affirmed.
ANDERSON, C. J., and GARDNER and BROWN, JJ., concur.