Sovereign Camp W. O. W. v. Ward, 71 So. 404

Sovereign Camp W. O. W. v. Ward

71 So. 404 | Ala. | 1916

THOMAS, J.

(1) In a suit on a life insurance contract, the complaint must show that the liability accrued within the period covered by the policy.—Eminent Household, etc., v. Gallant, 194 Ala. 680, 69 South. 884; U. S. H. & A. Ins. Co. v. Savage, 185 Ala. 583, 61 South. 817; U. S. H. & A. Ins. Co. v. Veitch, 161 Ala. 630, 50 South. 95.

(2) The complaint was not subject to the demurrers directed against it. The complaint alleges: “Nettie B. Ward, Plaintiff, v. Sovereign Camp of the Woodmen of the World.

*330“The plaintiff claims of the defendant the sum.of two thousand and 00/100 dollars, due on a certificate of insurance issued by the defendant to J. R. Ward, on to-wit, the 6th day of May, 1914, in and by the terms of which the defendant agreed to pay to the plaintiff, who was the wife of the said J. R. Ward, the sum of two thousand dollars upon his death.

“Plaintiff avers that the said J. R. Ward died on, to-wit, the. 15th day of December, 1914; that the defendant has had notice of his death; and that said certificate of insurance is the property of the plaintiff.”

(3) Assignments of error numbered from 2 to 12, inclusive, challenge the ruling of the trial court as to the competency of jurors Douglas, Kirkpatrick, Dees, and Mills, for that, in response to questions propounded to the jurors upon their voir dire to ascertain if any of them were members of the defendant order, said jurors on the panel answered that they “were members of the defendant order;” and one of these jurors, Dees, against defendant’s objection and exception, became a member of the jury trying the cause.

In Calhoun County v. Watson, 152 Ala. 554, 44 South. 702, a suit against the county to recover ex officio services by the clerk of the circuit court, challenges were sustained of jurors who were in the employment of the county commissioners as such. The court held that trial judges cannot be too zealous in ridding the jury of men whose interest and environment is calculated to sway them in the slightest degree. The fact that the jurors excused by the court were employed by the commissioners might be but slight incentive to bias, yet it was the action of the commissioners that was being assailed by this suit.—Louisville & Nashville R. Co. v. Young, 168 Ala. 551, 53 South. 213; Stennett v. City of Bessemer, 154 Ala. 637, 45 South. 890.

In Woodmen of the World v. Wright, 7 Ala. App. 255, 60 South. 1006, questions were propounded to the jurors to ascertain if either was a member of the defendant order, and the exception was reserved by the defendant to such qualification by the court. It was held that the question touching such membership and, of necessity, their qualification, was proper.

In Stennett v. City of Bessemer, supra, it was held that the court was justified in excusing a juror who had a similar case against the defendant, because “the law implies a bias;” and in L. & N. R. Co. v. Young, supra, the jurors in question were em*331ployees of the defendant, and the rule of bias implied by the law was sustained. In Calhoun v. Hannan & Michael, 87 Ala. 277, 6 South. 291, the court declined to put the trial court in error for refusing to sustain the challenge of a juror on the ground that he was “an employee of another party who had a similar suit in court.” This case is clearly distinguishable from Stennett v. City of Bessemer, supra. The right of neither party, to a jury free from bias or interest, is lost or subjected to chance or peril, because a struck jury is demanded. Dothard v. Denson, 72 Ala. 541; Lewis v. State, 51 Ala. 1; Davis v. Hunter, 7 Ala. 135.

We are of opinion that the trial court committed error in not excluding the juror Dees upon the reasons controlling in the adjudged cases herein cited. It is true that in these cases the appeal was to review the action of the trial court in excusing jurors from the panel, or in sustaining challenges of jurors; but the same good reason upon which those decisions turned underlies the objection made in the case at bar.—Martin v. Farmers’ Mut. F. I. Co., 139 Mich. 148, 102 N. W. 656; Delaware Lodge No. 1, I. O. O. F. v. Allmon, 1 Pennewill (Del.) 160, 39 Atl. 1098.

(4) To authorize secondary proof of documentary evidence, a proper predicate must be laid, or due notice to produce be given under the statute.—Code 1907, § 4058; Russell v. Bush, infra, 71 South. 397; Golden v. Conner, 89 Ala. 598, 8 South. 148. The rule is that such notice be given as will enable a compliance therewith. The documents relating to the proof of death, in Omaha, Neb., could not be produced in Greenville on the day’s notice.

The defendant will be prepared on another trial to comply with the demand for the production of these documents.

(5) The letter from defendant’s general attorney may have tended to show notice of proof of loss received, or a waiver of formar proof, yet it was not competent to introduce the same in evidence for that purpose, over the objection and exception of defendant. It was a confidential communication between defendant or its agents and the general attorney of defendant, containing privileged matter.—Ganus & Co. v. Tew, 163 Ala. 358, 50 South. 1000; 7 Mayfield’s Digest, 331.

(6) There was no error in the refusal of the court to admit the hearsay declarations of witness Kern and witness Pierce.

(7) The predicate was sufficiently laid for the admission of the secondary evidence of the contents, of the note taken from the body of the deceased by the attending physician, and given *332to the witness. He had the subpoena duces tecum, and stated in response thereto that he did not have the paper after carrying it home and laying it aside.- — -7 Mayfield’s Digest, 331.

(8) No error was committed in excluding that part of the answer of Dr. Hawkins thát “he committed suicide.” This was the question of fact made a material inquiry in the case — the manner and cause of decedent’s death. Whether by accident or suicide was the issue, and the fact could not be shown by such declarations.

(9) The inquiry was pertinent whether the decedent was addicted to drink immediately preceding his death, tinder the plea setting up the suicide exemption of the contract of insurance, this evidence should have been allowed for the consideration of the jury in connection with any recent declarations of decedent, sought to be shown, relative to this unfortunate habit, if such existed, and his effort and purpose to abstain therefrom.

(10) The affirmative charge was properly refused. These were questions of fact, for the decision of the jury.—Woodmen of the World v. Wright, 7 Ala. App. 255, 60 South. 1006.

The judgment of the circuit court is reversed, and the cause is remanded.'

. Reversed and remanded.

Mayfield and Somerville, JJ., concur. Anderson, C. J., concurs in the conclusion and opinion, except in the holding that there was reversible error in not excusing the juror Dees, because a member of the defendant'order. He thinks that the court could well have excluded this juror, but that the defendant was not prejudiced by having a juror who was a member of its order, and whose bias, if any there was, was favorable to the defendant.