| Ala. | Jan 22, 1914
To John M. Connelly, who died in 1906, was issued in 1895 an insurance certificate, for $1,000, by the insurance department [endowment rank] of the fraternal order known as the Knights of Pythias of the World. The monthly due or assessments due. from him on his policy contract were fully paid by him
With reference to the question of Mrs. Heineke’s authority in the premises, our conclusion is that the court was correct in submitting that inquiry to the jury for decision on the facts and circumstances shown in the evidence.
A by-law in force and effect during 1903, which was an element of the contract under the stipulations thereof, provided.- “No person shall be agent of the endowment rank for the collection of assessments, or authorized to receive any money on account thereof, until he shall have executed and delivered a bond as requirer by this section, and the same shall have been approved and accepted by the board of control.” It is manifest, we think, that this by-law was only intended, and in fact effected, to safeguard the interest of the order in respect to assuring the accounting for and payment of the assessments. There is nothing in the by-law precluding the reliance by an insured upon the every indicia, as shown by phases of this evidence, of qualification of those in the local office at Birmingham to- collect assessments against those who had policies in the order. Nor is there anything in the by-laAv restricting an agent like J. H. Heineke, who had qualified as the by-law requires to receive or collect assessments from persons due to pay them, to commit the exercise of his functions in that regard to a clerk or assistant of the character the evidence, in some of its phases, tended to show Mrs. Heineke was. No difference in construction of the bylaw would or could result from the fact, which we assume, that this insured kneAV o-f every provision in the quoted by-law. It is, of course, the terms alone of the
There is evidence tending to show continued service of Mrs. Heineke in the office of her husband; her .access to and control over the books containing the names of the insured in that jurisdiction; her receipt of, and receipting for in the name of the agent, assessments payable at that office, including those due before June, from Connelly; her declaration, after consulting the books kept in the office, that this John M. Connelly was not among those insured in that jurisdiction; and her refusal to receive the requisite sum tendered for John M. Connelly to satisfy John M. Connelly’s June, 1903, assessment. Mr. Heineke testified, among other things, that Mrs. Heineke’s only authority with reference to the business of the Knights of Pythias “was to' receive from members money on the dues and give a receipt.” (Italics supplied.) By reference to the books of the agents’s office, she ascertained, and accordingly acted, that John M. Connelly was not among those insured. It was not possible, of course, for her to exercise this authority without in some way determining who were members; and in this instance she pronounced against John M. Connelly’s membership as a result of her con
It is urged for appellant that, even if the June, 1903, tender was made and refused by Mrs. Heineke, as when and on the ground the evidence tends to show, it was-incumbent upon John M. Connelly to subsequently continue the tender of the monthly assessment, and failing that, as was the case here, the forfeiture asserted was effected.
If the jury were reasonably satisfied from the evidence of Mrs. Heineke’s authority in the premises, and also reasonably satisfied that the tender of the June»assessment was refused because John M. Connelly was-not a member and was not among those insured in that jurisdiction, there was no obligation on John M. Connelly .to make tenders of subsequent assessments. — 29-Cyc. p. 178, and notes; Supreme Lodge, etc., v. Davis, 26 Colo. 252" court="Colo." date_filed="1899-04-15" href="https://app.midpage.ai/document/supreme-lodge-knights-of-honor-v-davis-6563107?utm_source=webapp" opinion_id="6563107">26 Colo. 252, 58 Pac. 595. The ground of the refusal was such as to render entirely vain any further tender. The insurer should have discovered the error and notified the insured in order to oblige him to make payments of assessments subsequent to the refusal of the-June, 1913, tender. The placing of the refusal of the June assessment upon the ground stated was a waiver of all other grounds possible (if so) of assertion by the-insured. — Dist. Grand Lodge v. Hill, 3 Ala. App. 483" court="Ala. Ct. App." date_filed="1911-12-01" href="https://app.midpage.ai/document/district-grand-lodge-no-23-united-order-of-odd-fellows-v-hill-6521091?utm_source=webapp" opinion_id="6521091">3 Ala. App. 483, 57 South. 147.
It is also urged for appellant that distinct imperative-provisions of the contract of insurance required the sea
The appellant assigns on the record 73 errors. Many of these are not insisted upon in the brief; counsel being often content with the mere assertion that the court was in error in the action referred to. The trial court took proper account of the rules of law we have stated, particularly in respect of the rulings made on objections to units of pleading interposed by the respective litigants. We find no prejudicial error in any ruling-touching the pleadings. There are 28 assignments that touch this phase of the trial. The general, applicable principles announced must suffice for a response to the argument on the substantive law argued by respective counsel. It would be wholly impracticable to render a detailed treatment of each assignment in this category. Each has been examined, and no prejudicial error appears.
Thirty-two assignments complain of rulings on the admission or rejection of evidence. Those urged in brief have been carefully considered. No error appears to have been committed by the trial court in dealing with this feature of the contest. Furthermore, it seems that- objections, by defendant, to answers to questions propounded to the witness Eidge, who was examined by deposition, were not seasonably interposed. — R. & D.
All the circumstances reasonably calculated to disclose Mrs. Heineke’s authority in the premises, including her association with the office of the agent and her recognized acts therein, were properly received in evidence on the issues stated. The questions of her agency, its authority and extent, were jury matters under the legal principles and issues properly made by the pleading. There were tendencies in the evidence which forbade the giving of the affirmative charge on any of the issues thus made. • What we have expressed as the applicable substantive law confirms the correctness of the court’s action in refusing, to defendant, the special charges upon which assignments of error 63 to 66 are predicated.
Only two grounds of the motion for new trial are insisted upon in brief. On the evidence shown by the bill, it cannot be affirmed that the trial court erred in its conclusion that the preponderance of the evidence against the verdict Avas such as, .under the doctrine of Cobb v. Malone, 92 Ala. 630" court="Ala." date_filed="1890-11-15" href="https://app.midpage.ai/document/cobb-v-malone-6514331?utm_source=webapp" opinion_id="6514331">92 Ala. 630, 9 South. 738, Avould justify its annulment. The other ground of the motion is that one of the jurors was so intimately socially related to the succeeding (the beneficiary named in the policy died pending the suit) beneficiary under the policy as to disqualify him to render an impartial verdict in the cause. The facts on which this insistence was rested were the subject of contest. We do not think the trial court incorrectly concluded from the evidence submitted that the asserted disqualifying relation was not established.
The judgment is affirmed.
Affirmed.