84 So. 810 | Ala. | 1920
This action, instituted by the appellees against the appellant, sought recovery on an insurance certificate issued by the appellant to Will Keefe, payable to appellees upon his death while a member in good standing of the order. Keefe was a member of the order, and insured therein for several years. About January 1, 1918, his insurance was forfeited for nonpayment of an assessment. On, to wit, April 16, 1918, within the period stipulated in the laws of the order, the insured was reinstated, one of the conditions to reinstatement being that the member should be in good health at the time of reinstatement. Keefe died on May 3, 1918. The pleadings presented and the parties litigant contested the meritorious issue, whether Keefe was in good health at the time of reinstatement. If not, he was not reinstated, and the beneficiaries under his certificate were without right to recover; and, if he was in good health at the time, there was shown no reason against their right to recover.
It is manifest from a careful consideration of all the evidence bearing on this vital issue that the trial court correctly submitted its decision to the jury, regardless of which party had, under the pleadings, the burden of proof. The question is not so doubtful as to be at all debatable. The opinion evidence of a physician in such circumstances is not, as the trial court instructed the jury, conclusively binding upon the jury. None of appellant's pleas were conclusively proven, and there was evidence supporting the replication.
The assignments of error refer alone to rulings on the admission or rejection of evidence and to the instruction of the jury; and there was no exception taken to the oral charge of the court. Appellant's requested instructions, numbered 1 and 2, respectively, required a verdict "for the defendant" on counts 4 and 5, respectively. There being other counts in the complaint, such requests are bad in form, and were properly refused. City of Birmingham v. Poole,
A number of the assignments are based on the action of the court in overruling objections to testimony, or motions to exclude testimony, which did not seasonably state any grounds therefor. It would seem hardly to be necessary at this late day again to observe that a trial court cannot be put in error for overruling objections on motion unaided by any grounds assigned, or when the objection or motion comes too late. Rutledge v. Rowland,
The complaint that an "official notice of death" of Keefe was detached from answers to interrogatories propounded, under the statute, by the plaintiff to the defendant for its separate introduction in evidence, is not justified, because: First, demand for the production of this paper was made before the interrogatories were filed; second, the whole of the answers to which the paper was attached, were later admitted in evidence, without objection.
All the papers pertaining to the reinstatement of Keefe as an insured member of the order, as well as the advice given him by an officer of the local camp of his reinstatement, each indicating a contributory step in the process of his reinstatement under the laws of the order, were properly received in evidence over the objection of the defendant. The certificate of the camp physician, attesting Keefe's good health after a physical examination of him, was manifestly admissible in evidence on the issue indicated, such certificate being required by section 117 of the "constitution and by-laws" of the order. The trial court, in admitting elements of evidence of this character, so restricted its probative force, in respect of Keefe's reinstatement, as to deny it the effect of proving that the requisite number of members of the local camp voted, as the constitution required, for the reinstatement of Keefe, thus avoiding the point of defendant's contention that the best evidence of the vote was the minutes of the meeting of the local camp. The certificate of the clerk was, as the court held, distinctly admissible as evidencing the receipt of the money paid by Keefe as a condition to his reinstatement. The authenticity and at least prima facie authority for the acts, thereby illustrated, of the writings purporting to be executed by the officers of the local camp and of the general officers at Omaha, Neb., were established. The fact that they were, in part, communications between officers or agents of the defendant with respect to the reinstatement of Keefe did not, of course, operate to deny their appropriate consideration by the court and jury in determining the question of the reinstatement vel non of Keefe as an insured member.
The court sustained objection to this question propounded by the defendant to Dr. Levi: "State whether or not you told him [Keefe] what was the matter with him?" There was no intimation as to the purpose in the examiner's mind. The real issue, heretofore stated, was with reference to Keefe's state of health at the time of his reinstatement in April, 1918. There was no error in sustaining objection to the question.
Whether a brother of Keefe was suffering with tuberculosis at or about the time of Keefe's reinstatement was not, of course, *639 serviceable to the proof, in any degree, of what disease Keefe had at the time of his reinstatement.
On cross-examination of Mrs. Howell the defendant propounded this question: "Did Dr. Levi tell you what was the matter with Will Keefe?" It is not to be supposed, as there is nothing to indicate it, that the purpose of this question was to introduce evidence reflecting upon the credibility of defendant's own witness, Dr. Levi. If that was not the purpose, the question quoted was not designed to elicit any evidence material to the issue being contested by the parties. Furthermore, the question did not disclose to what time the examiner had reference.
There is no error in the record.
The judgment is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.
