76 So. 450 | Ala. | 1917
The appellee (plaintiff) sued to recover from the appellant $100 under a policy of fraternal insurance, payable on the death of Horace Lile. Lile died on October 18, 1913. He had gone through initiation into the appellant order only a few days theretofore. The complaint, on which the trial was had, finally consisted of counts 1, 2, and 3; those numbered 4, 5, and 6 being withdrawn. The defenses interposed were those permissible under the general issue, together with such "good defenses" as might have been specially pleaded.
The second count averred that the appellant insured Lile's life and engaged to pay the "person or persons mentioned in the will made by the insured during his lifetime" the amount stipulated. The demurrer to this count took the objection that it was not alleged that the "will" had been probated; this on the theory that the cause of action stated in the count was predicated of rights established by a "will" made by Lile. It is averred in the count "that said Horace Lile, during his lifetime, by will conveyed the benefits of said policy" to the plaintiff. The demurrer was due to be sustained. By the averment quoted the plaintiff ascribed to the policy the effect of exacting a testamentary disposition, effectually probated, and subjected her right to recover to a transmission of the benefits under the policy through the means of a testamentary instrument duly probated. The count under its manifest theory, was faulty in omitting to aver that the instrument relied on had been duly probated, so as to effect the transfer of the benefits alleged in the count.
According to the laws of the order, and the provisions of the contract of insurance that expressly made those laws a part thereof, no benefit was demandable or payable if the insured died of heart disease within four months from the date the insured became a member of the order. Dr. Emens, who attended Lile in his last sickness, testified that Lile died of "organic heart disease" on October 18, 1913, only a few days after his initiation as a member. The plaintiff offered, and the court over defendant's objection received, testimony to these effects: That Lile, up to the day before his death, had the appearance of being a healthy man; that Dr. Emens had not been to see Lile for months before he died; that Lile had not complained of heart trouble before his death. There was no error in admitting the evidence to the indicated effects. The statements thereby sought were of facts, not opinions. Dominick v. Randolph,
If Lile died on October 18, 1913, of organic heart disease, the plaintiff could not recover. In the recent decisions delivered here in the McHenry and Beiser Cases, reported in 73 So. 97,1 and 74 So. 235,2 respectively, it was held that in the circumstances contemplated by the act of 1911 (Gen. Acts, p. 713), the observance of the constitution and laws of a fraternal insurance society cannot be waived by agents.
As we understand the bill of exceptions, there was evidence tending to show that Lile had paid the dues necessary to be paid to constitute him a financial member. The policy recites that he was a member financial, and the certificate of the officers of the "Reynolds Chamber No. 2600" (admitted without objection) recites that Lile had paid all dues demandable. It cannot be affirmed, as a matter of law, of the evidence, that it indisputably established Lile's status, at the time of his death, as being that of a nonfinancial member, which, if so, would have, under the contract, avoided the plaintiff's right to recover the insurance money claimed.
The judgment is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.
