Sovereign Camp, W. O. W. v. Dennis

ALABAMA — 616) <&wkеy;959(3) 8. Refusal Disturbed, Ab- of Amendment not CAMP, DENNIS. O. W. Showing a Abuse sence Clear 632.) (4 Div. Discretion. Appeals Nov. 1920. (Court Alabama. permit to answer amendment Refusal to Rehearing Denied Jan. plaintiff being discre- after bad rested tionary court, disturbed with the <&wkey;815(l)Complaint Based Insurance 1. — appellate appeal, is con- -on unless Required to on Benefit Certificate an vinced that the action of the court Allege Fra- as 'Defendant’s Organization. Charactеr amounting .of a denial abuse of discretion to ternal justice. beneficiary certificate, on In \ action <&wkey;472(ll) 9. who Ex- Evidence —Witness alleged required the defendant to was not was a Body where amined at Place Deceased’s gov- organization, therefore fraternal give Opinion to cannot Found governing by old- than if there was laws those erned by Whether Death was Suicide. insurance, law en- since line by In certificate defended аction on benefit modifying tering rea- the contract into and suicide, ground regular committed on that deceased being other than son place witness, subject at the who examined company, fact was such insurance quo, found, together the locus allegation where with defense, an-expert, give opinion - his proof. íéstimony death, but must limit his cause of to the <&wkey;815(l)Complaint held Insurance 2. — facts, from must draw which a Fra- Character Plead Defendant’s ternal the conclusions. Organization. &wkey;>817(3) Bur- 10. Insurance complaint certificate, —Insurer In action benefit Proving as Defense den of Suicide plead fra- as ‍‌‌‌​​‌‌‌‌​‌‌‌​‌​‌​​​‌​​​‌‌‌‌‌​​​‌​‌‌​‌​​​​​​​​​​‍a defendant’s character held Benefit Certificate. organization. ternal In an action on a benefit certificate involv- Allegation <&wkey;815(l)(cid:127) 3. Insurance ing the issue of whether the deceased commit- Standing at Time Deceased of Death in Good suicide, evidentiary presump- ted there is an Compliance with held to Show against suicide, tion and the defendant has the Necessary of Contract. Conditions presumption, overcoming burden of such certificate, an In action on benefit pro- circumstantial, where the evidence is duce facts which exclude pothesis standing at inwas tion that the every hy- equivalent an al- death was time natural accidental death. legation complied all the nec- with thаt he had essary of insurance. conditions contract (cid:127) On <&wkey;89 Disputable Presump- Evidence &wkey;815(l) 11. 4. — Insurance of Con- —Violation tion of Law Establishes Prima Facie ditions of Insurance Contract are Mat- Fact. ters of Defense. presumption may disput- A establishes a law which .The violation of conditions attached-to the prima fact, defense, contract of ed only tion facie which can insurance matter of subject allegation overturned complaint. be оf evidence to the satisfac- in the jury. Pleading <&wkey;236(4) of Com- 5. —Amendment — <&wkey;S18(4) plaint 12. Insurance Considerations Amount Claim® Trial Determining Discretionary Whether Insured Com- with Court. mitted Suicide Stated. certificate, beneficiary v an action In beneficiary certificate, In an aon an amendment the court of allowance ground defended that the deceased had amount claimed the after presence suicide, committed motive, testimony or absence of. disсretion- had been taken held physical surrounding death', governed ary 1907, 5367, Code temperament insured, habits and his the domestic ment section environment, state- and social n — evidencing <&wkey;1041(2)Amend- intention to commit Error Increasing previous act, death, question to and near the time PIarm- made Amount Claimed ment Orig- may determining be considered less, Based Where Verdict he suicide. of whether inal Amount. to the com- an amendment allowance <&wkey;825(3) Insured —Whеther1 increasing plaint less, nal amount claimed. harm- claimed was the amount Jury, Suicide ‍‌‌‌​​‌‌‌‌​‌‌‌​‌​‌​​​‌​​​‌‌‌‌‌​​​‌​‌‌​‌​​​​​​​​​​‍Unless Committed origi- based the verdict was where may Only be Drawn from One Inference Facts. Pleading <&wkey;236(4) certificate, Permit action on a benefit —Refusal after ground Answer Plaintiff Amendment that the insured commit- fended on the held of Dis- not Abuse had Rested Case not be ted given that death cretion. the insurer on the by suicide, from permit his are facts there defendant after Refusal to jury might draw an inference rested his case which evidence and introduced 5367, by result of an death of the insured was the the accident answer under Code to amend filing-plea for some caus- alleging or that have been facts known rather that of time, ed other means suicide. nót abuse of discretion. held Digests Key-Numbered (2=>For in all see same eases KEY-NUMBER CAMP, W. O. W. v. DENNIS by ©=819(4) 668; 417; App. 14. Insurance 73 C. C. A. Written D. C. —Note Immediately (Tenn. Death not before Ch.) 57 S. Insured 414.W. Suicide. that he Committed Conclusive immediately priоr Parks, Troy, appellee. L. & S. insured of Note written for showing death, sui- an intention to to cide, It was within the of the trial discretion question though important evidence on plea court to allow the of 3 or to re- suicide, was the insured of whether 270; fuse it. Ala. 37 South. conclusive, con- evidence to be not but was 759; Ala. 49 South. 195 Ala. along sidered other evidence all co.mplaint good. South. 756. The ease. authority 71 South. 404. On this ©=825(3) Insured 15. Insurance —'Whether properly Jury. the сourt denied evidence of Suicide held for Committed opinion as to whether or it was a not sui- certificate, defended on benefit questions presented ques- cide. tions for were sui- insured committed on the cide, that the of whether did err the court not jury. refusing for the suicide helé to the defendant the affirmative charge. Appeal ©=294(1) and Error — Without Trial will Motion for New Court SAMFORD, complaint J. The in two Sufficiency Evidence. Pass of on counts as follows: motiоn for a new Where there was no power pass Appeals “(1) $500, the Court of without Plaintiff claims of the defendant sufficiency together upon of thereon, the evidence. with the interest due umher provisions der and of that certain ben- Appeal Error) ©=209(2) —Omission eficiary Dennis, certificate issued to-L. B. No. Appeal, on not Available: of Proof Alabama, day defendant on the 21st Brought to Trial Court’s Where November, 1917, of provided wherein it is Attention. in while in Dennis, case of the death of the said B.L. certificate, In an action on a benefit good standing, should his death occur complain plaintiff’s appeal on insurer failure to furnished fore property during year membership, first of his proof of death had been pay plaintiff, bearing fendant would relation- payment had been be- demanded ship wife, to the L. B. said Dennis of said suit, policy commencement was the plaintiff sum $600. And avers that the said рlaintiff, and that died insured Dennis, good standing, during L. B. the while in standing, where the omission to while make such year membership, died, first of his and that proof brought was not to the trial death, the defendant has had due notice of his attention, required by court’s circuit court pdy plaintiff and has refused to to to the said sum xxi). rule 35 agreed pay, plain- $600 which wherefore brings alleges tiff this suit. Plaintiff that said ©=835(2) —Conten- beneficiary property plain- certificate is the Original tion, on Made Brief Sub: tiff. mission, not Considered “(2) Plaintiff claims of the defendant $500 Question sufficiency proof, policy due on beneficiary of insurance or appellant’s raised in mission, by brief sub- certificate issued the defendant to L. B. waived, not be considered day Dennis on November, 21st rehearing. whereby L. member of first his wife, agreed the defendant the said Dennis, ©=789(2) standing B. -in of Liabil- — Denial ity defendant, No- during on Other Grounds should die Waiver year membership, of his pay, tice and Proof of Loss. it would dеath, plaintiff, bearing relationship society’s Fraternal benefit denial lia- the sum of bility $600. grounds And avers that refusal other Dennis, the said standing L. B. proof the failure to make of loss was a waiver as a fraternity, member of said of notice and of loss. during year membership, died, first of his Court, County; from Circuit Pike and that defendant has due notice Foster, Judge. A. B. death, pay plain- failed or refused to tiff the said agreed sum against $600 which it Action Mrs. A. Dennis pay, brings wherefore this suit. Sovereign Camp Woodmen of the World. alleges beneficiary Plaintiff that said certifi- Judgment ap- and defendant property plaintiff.” cate peals. Affirmed. denied, Certiorari South. 620. complaint to, was demurred and the overruling assigned of the demurrer is here Roquemore, ap- Montgomery, H.C. The several error. counts of the com- pellant. plaint complaint are similar in Sov. permitting The court error Camp Ward, W. O. W. v. 196 Ala. plea to file 3. Section Code where this court held the ; 44; 27; 365; 1907 38 Ala. 56 Ala. 58 Ala. tions be sufficient. 425; 106 Ala. specific grounds 17 South. 395. [1-3] As to the of demur refusing The court was complaint alleges ownership in error in the de- rer: The charge. fendant 463; the affirmative plaintiff. Appellant 75 South. certificate in insists that Iowa, 395, allege 142 Fed. defend- Key-NumberedDigests same see cases ©=For KEY-NUMBERin all 17 ALABAMA feited.’ physician, intentional or rights fact itself, tion contains fore ten which in that the and answers two true, and swers made mony ined three of based examining statement complaint insured with defendant’s dition: .‘I lent was rant ters of organization may the defendant 10, whether pany, amendment ant injured, cretion, erning ciary tain his contention. company leave to file conditions ing reason tract each count tion day amount claimed er the governed by tion and alleged'that entering ular subject “Eor further answer [7, [5, [4] The her at the time I pages application cоntract of the in that, after governed by 8] After the whether 6] The insurance all the in this under of insurance. agree on the certificate insured application would testimony defense, of old-line of benefit, against an a fraternal into and in a fraternal or in that the said proof by plaintiff. taken as defendants and hereby certify all the is demurrable defense, physician, contract of attached to rested and defendant fact that complaint. thereof, allegation to the counsel cites plea No. 3 as follows: which the in this instant standing. ‍‌‌‌​​‌‌‌‌​‌‌‌​‌​‌​​​‌​​​‌‌‌‌‌​​​‌​‌‌​‌​​​​​​​​​​‍Code the deceased necessary in this allowance application, or to persons sued aforesaid, meet this written its witnesses and says me the life of allegation, and company, insurance. shall become following provision is and constitutes had been pleadings the verdict 1907, 5369, modifying in statements, be well inferred complaint by upon. and join a $600, are this separately application, organization, standing. Violation defendant whole, case B. untrue thereunder shall by my or amount The contract death, that insurance conditions to the trial the contract If there not of death, are § laws on, wit, otherwise, any. introduced Dennis made application, on that instead no we plaintiff’s was That that appellant offered full, the court of had gone he subject own hand or the an authority statement or judge Aside death, and was do not the than those agree claimed. concealment original The representations complaint, in but void, is had fact was old-line complaint, in of complete said consisting been contract, ground, into, had exam my and there- and asked has a November examining demurrer, her testi from $500, think severally, fraternal evidently from or husband, complied are sued any that was the con- apрlica- and all part settled, equiva- section to benefi- allega second stand- order, writ- war- mat com- con- law, for- gov- the not, sus- have -dis reg- which counsel and aft >the an- not South. the the the the the the on, lin Life an -of ,we without give judgment the court would not have been au practice insured shot himself proving suicide to the reasonable satisfaction thorized facts in the' instant case are Ala. preme tion in favor of lowing: He of the is untrue direct and rule laid аnt cumstantial, draw the Ward, 196 Ala. ed the discretion of the evidence his the with expert his son’s of the court of ant in his file I declare and $1,000, null plaintiff.” cepted. tiff amounting ‘-.’ this court is judge, L. “Have ed: ‘Is of “That on “The “No, Affirmed. We The The court then refused to allow ^[10] [9] A the court this man would swear that he did not & N. the having plead plea following question statements insists 37 South. 270. This and amount, at the locus in Code jury resting on defendant. find no error Court I’ve known in that sense as that he can wherefore writing which will you your defendant аmendment, 'the time testify error. witness, This ‘Eor the void, R. Said to direct a verdict. The refusal handwriting.” it in this: That said L. B. Dennis did down general charge and at the the refusal is affirmed. conclusions. say introduced his evidence and ¿he at the time offered rested to a denial positive remaining question because did not 1907, 5369, that R. just clearly opinion life makes when application also contains the fol- Leader v. and that the discretion warrant-the second repliеd: Co. v. to to the give asked the’ in the Hackworth place insured?’ this life insurance purposes who examined the found said defendant is not discretionary it for some alleges quo, 463. In that Company I and convinced that the action the statement an intentionally,” as to the correct.’ and the facts, page Wynn, ease comes certificate to -allow defendant where South. evidentiary defendant’s Sov. C. W. O. abuse company?’ out but Mattingly, ruling justicе. that said and the burden of of this answer is request foregoing ‘No’ but disturbed, in charge. expect and by Code, those facts? record and the shows said found, time; qualified requested cause defendant the amount in the Frank- is the refusal is not with the entirely case sued in this case was abused. ‘If application, application, indebted to within the Under our that, The discretion, the Case, while the presump the but I did warranty so, Answer: together counsel: answers contain- Defend upon is defend give govern within unless father death. rested plain know “The state trial cir Su ex of to v. CAMP, W. O. W. v. DENNIS law is orandum book of deceased in which was writ- accidentally killed ther of His decisive of the case until overcome here insisted that take baby was an entire absence of Lizzie I want ten, recently to indicate financial with and work in the usual apparently pleasant The insured was wont up recently fired, there inference to be drawn from the facts sion that the deceased either and the window between his would tack from another would than in his ter and as offten as insured shall the entire way bar of the the fact of suicide had with the best off May the circumstances ting. shown shut; a gunshot all the last of clothes, the sonable satisfaction of the error in and lost defendant on the defendant, clause “My “Dear farther an knife, The coat was found as indicated. There Saturday in BRICKEN, you insane, and floor, suicide, room, bed near the insured committed domestic in deceased’s my crop his 17th and addressed to J. A. teatch him Do shock coat is at Freeman Flowers store. Now there was can I will remain against suicide, principal indicate that through my two loaded and refusing wound was sat Daddy Doing health and dressed powder absence to establish this you mind But action. The right feet; there, or that deceased was otherwise the hat and make а small my policy you P. May, On surrounding all Por down, and the rear door was the back. defense gun J., being rezines peace found dead trial mind when last seen alive. burns on you himself. the body, front handwriting way. and the social “[Signed] L. B. Dennis. shells, and some mother, his near his clean embarrassment. charge follows: in his left shall become impress do go the deceased was found in the room going see Lizzie and front single barrel and will stand and be pleaded deceased, trial court lying you something you ask suicide. back to Tell porch, your boy. been so nothing burden and to think off the overalls environments were lead to the interested not sit- affirmatively if effect 1-Ie was On the this know hope you rong. door was I will write fact, about his on the you jury, the dead intentionally in his presumption body, some one motive shown whether this under body. a note dated side, all you case was a mem- was on the all to God this the side of established. was shown Thеre is I am Dennis, stiff, to the rea- and under- void. The outside of Hughes in his work on evidence as follows: Papa and to do bet- bed were clause my partially Earewell home tobacco; lying shotgun, Pa.” ranging He any out is that conclu- locked, Every and sweet crazy daily- testi- sane man shot hat, was Among and and you you off, fa- at- is hereinabove stated and the Ann. Cas. Maisel v. lished 4 Michie’s disputed nocence remains until a This tee, in civil are sufficient to ovеrturn it. considered and thorn to Rogers Ann. Cas. 27. can of the insured was caused satisfaction of 125 Ala. criminal A. overcome this 116 Ala. While the measure of fact, nor evidentiary fact are criminal other facts and ties there cited. This on Ev. garded from evidence of duty. and in turpitude. State v. ting ment must accidental Co. v. Ins. E. are the mony every come this I. circumstantial Standard Life Ins. “This At the common law suicide [12,13] In ^[11] raised Ante, p. innocent of crime until his O. 1057, certainty, ‍‌‌‌​​‌‌‌‌​‌‌‌​‌​‌​​​‌​​​‌‌‌‌‌​​​‌​‌‌​‌​​​​​​​​​​‍(N. many v. v. Modern ofCo. Va. only cases of & N. A. indulged F., presumption which shall' Devault, A Roman, Lentz, par. C. S.) presence v. Alabama as a matter of and criminal presumption G. S. cases; 128 Am. St. either establishes a explain 100 Minn. 254, defendants to cases, Kelly, presumption evidence State, 1913E, 974; 445, 446, be overturned circumstances which are of C. presumption, State, Digest, dealt death. Lindahl things important The A. determining L. doubt,” 28 South. 177 Ala. mainly presumption Ry. Moody, directly v. Trustee, weighеd by and when the the rule 109 Va. W. 81 South. presumption 117 Am. 22 N. D. or absence of motive with mere 60 Atl. is the same in civil 117 Hairston, circumstances beyond p. 119, outweigh hypothesis they the jury. Hughes v. v.Co. Q. party headnote, 23 South. 40. Rep. 989; obtains Re eases, show, Ry. Marbury prima innocence of law which crime A., L. A. 64-71, guilt proof 438, v. 392, had. facts which exclude Cowdry, evidence, proof necessary presumption indirectly.” Hughes St. 348;1 v. a reasonable doubt. presumption § Thornton, whether the death 5, 110 Minn. 192, Lentz, supra. making 108 Va. 182, differs somewhat by suicide, the one with fair facie .Ann. Cas. 70. presumptions 50 L. to be considered performed Bryant 63 S. is that a of the accused. involving- 132 N. W. Rep. 666; purpose other, 58 South. guilt stated awas both Met. Life Ins. Roman, 23 South. Supreme Ct., is convinced presumption. and 77 Vt. 359. on Ev. fact, natural compelling and A.R. E. 832, to be re until the case is estab civil being v. 100 Fed. To “beyond authori weight. 8 L. R. 982, (O’Con felony, L. person degree of in which as an moral State, Trus to .be there their aver 62 S. over is guilt Life put 223, 620, Co., Mr. 6; 17 2 ALABAMA G46 original submission, 1244); physical in brief on the [N. S.] made is N. 25 R. A. W. L. (3) surrounding (Johns Mu Proof v. N. W. was made the de- facts waived. liability A., grounds. fendant denied Wis. tual R. temperament 587); of Where such denial and re- R. habits and this is A. proof insured, environ fusal is a 'waiver domestic and social of notice and the ment Joyce Yeoman, Iowa, (Tackman (4) v. B. of of loss. on Ins. A. vol. 974), tending 64, any [N. S.] was evidence 106 N. 8 L. A. There establish death, demand, ownership pol- evidencing an to of statement intention icy standing act, previous and that made to and near insured was at the time of his death. We see time of But there are death. jury might infer no reason for the conclusions here- draw an from which ence that reached, ¿pplication tofore for re- of the insured was the death may hearing accident, is overruled. or that his death result of means, rather than been caused have that of 29) (88 South. Supreme given. Aiken Ala. McMillan v. ; Ct., McVOY CHASSIN. Div. Div. 127 Nov. term 87 South. Ringeman Wiggs Bros., (Court Appeals of Alabama. Jan. Co., Amerson v. Corona Coal Negligence Neg- <&wkey;100 Contributory the McMillan In 69 South. 601. — ligence Thomas, writing Case, supra, for Mr. Justice no Defense Action for Wan- Injury. may court, ton ok Intentional draw such said: “The Contributory negligence proved they is not a defense to be from the facts inferences ‍‌‌‌​​‌‌‌‌​‌‌‌​‌​‌​​​‌​​​‌‌‌‌‌​​​‌​‌‌​‌​​​​​​​​​​‍injury an action Case, for wanton or intentional In the McMillan lieve reasonable.” operation anof automobile. gone great supra, has Justice Thomas pains digest on Municipal the decisions collate and to' Corporations <&wkey;706(l) —Plea point, adopt. Negligence Contributory Bicycle Whatever which we here this may jurisdictions, our the rule be Rider to Show that Conduct held Negligent. there is scintilla court holds that where contrary plaintiff, riding A.plea alleging inference from which a while bicycle street, north east side might drawn, affirmative negligently operated it north drove or from the given. should not he side, negligently side to ran it the south [14-16] note written against automobile, show defendant’s did not evidence, prior important his death was operate bicycle negligence drive part of intention on a declaration from one side the street to the other. parties but declarations Pleading Neg- <&wkey;8(17) Contributory conclusive, against but them are not — not be Shown Pleader’s along ligence with all are to he considered Conclusions. pri evidence marily the case. The prudent That harmless and conduct or acts for the one fact contributory negli- in themselves constituted properly judge trying so ease learned gence shown otherwise mere for a new was no motion held. There pleader they neg- were conclusions pass power upon the and we are without ligent. sufficiency of the evidence. <&wkey;1040(7) —Sustain- ruling former to our We adhere ing Harmless, of Demurrer Plea to. held allowing discretion Because Matter Provable under Gen- pleas. no There is the amendment of rule eral Issue. parties cannot than that settled better injuries for in a a sustained speculate causes in the trial of allowed to bicycle, collision plea between automobile in the courts. plaintiff, riding east on the made, [17-19] The contention now street, negligently north side drove operated bicycle to make out her case failed from the north side to side, against the south ran it the automo- a failure to that defendant reason of bile, negligence constituted a mere denial de been of death furnished alleged competent complaint, in the to be shown payment brought, suit manded before issue; under taining harmless. and hence the sus- plaintiff, property was the thereto, error, of demurrers if standing, and that insured died while (1) merit: Because the omission is without proof, Court, County; this such were not to make from Circuit Mobile brought Goldsby, Judge. the attention the trial Joel W. required by Circuit Court Rule friend, Chassin, Prank Action next (2) xxi. The contention was against McYoy, damages per- J. injuries sonal suffered an automobile acci- 3Reported Reporter; full in the Southern re Judgment for the dent. ported opin as memorandum decision without appeals. Affirmed. fendant ion in Ala. Digests Key-Numbered see same other eases in all

iteoFor KEY-NUMBER

Case Details

Case Name: Sovereign Camp, W. O. W. v. Dennis

Court Name: Alabama Court of Appeals

Date Published: Nov 9, 1920

Citation: 87 So. 616

Docket Number: 4 Div. 632.

Court Abbreviation: Ala. Ct. App.