124 So. 889 | Ala. | 1929
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It is unquestionably the law, as settled by the decisions of this and many other courts, that the relationship of insured and insurer does not exist until after the acceptance of the application and the issuance of the policy, and that the applicant has no right of action upon a contract until the issuance of the policy. Ala. Gold Life Ins. Co. v. Mayes,
The plaintiff complied with all the requirements of the order, and his eligibility was not questioned, but he was accepted and the benefit certificate issued within two days after the receipt of the papers, yet the local officer neglected or failed to discharge his duty by a delay of two weeks in transmitting the papers to the head office. Therefore the action proceeds upon the theory that the plaintiff had complied with all the requirements of the order, was entitled to the benefit certificate and which would have been issued to him prior to the injury, whether the defendant did or did not have the right to decline, but for the negligence of the local secretary who owed him the duty, under the requirement of the defendant, to promptly send in the papers.
We are cited to cases by counsel on both sides and do not regard them in point and of little aid in deciding this case as it is sui generis.
The cases of Duffie v. Bankers' Life Ass'n,
The cases of National Union Fire Ins. Co. v. School District,
It is conceded in brief of appellee's counsel that, although the defendant may be an unincorporated benefit society, it is subject to suit in its common name in any action that could be maintained against its members. Sections 5723 and 5724 of the Code of 1923. It contends, however, that the "complaint affirmatively alleges appellant to be a member of appellee Brotherhood, and being a member he could not maintain the suit against the members." Whether there is any merit in the suggestion if plaintiff was a member, we do not decide, as we do not think the complaint *274 shows affirmatively that the plaintiff was a member. The complaint shows that membership was conditional upon being accepted in the insurance department, and the by-laws required the secretary to forward the application for membership and application for beneficiary certificate. It seems that each was dependent upon the other, and the very gravamen of this action is for the negligence of the defendant's agent in failing to forward immediately after the meeting, at which the plaintiff had paid his dues and was initiated, the application for "membership and application for beneficiary certificate" whereby plaintiff was deprived of the benefit certificate which was issued on the application and which would have been issued sooner and before the injury but for the negligence of the defendant's agent.
We think the trial court erred in sustaining the defendant's demurrer to count 4 of the complaint, and the judgment of the circuit court is reversed, the nonsuit set aside, and the cause is remanded.
Reversed and remanded.
SAYRE, THOMAS, and BROWN, JJ., concur.