79 So. 259 | Ala. | 1918
The trial court seems to have tried this case upon the idea that the policy contract was governed by sections 4572, 4573, and 4579 of the Code of 1907. The appellant, however, being a secret fraternal benefit society or association, did not belong to the class dealt with in said sections of the Code. Eminent Household of Columbian Woodmen v. Blackerby,
We think that the record unquestionably shows that the defendant is a secret, benefit order not governed by the sections of the Code above noted. The defendant's answer to the interrogatories not only discloses this fact, but the application or declaration for a charter recites:
"The object of the said corporation is to unite fraternally white persons of proper age and good social and moral character in a fraternal beneficial and relief society, with ritualistic or secret work for beneficial and protective purposes."
As this case must be reversed and tried under the law as laid down in the Ala. Gold Ins. Case, supra, instead of the sections of the Code above noted, it is not out of place to suggest that under the evidence as now presented it is quite material whether or not the insured was bound solely by the representations and warranties made at the time of the issuance of the policy or the change thereof in 1902, or by those made upon the reinstatement of same in 1915. There is no proof whatever of misrepresentations or a breach of warranty in procuring the original policy or a change thereof in 1902, though there was proof of same as to the application for a reinstatement in 1915, and if the insured had been properly and legally suspended under the terms of the policy the application and statements of 1915 were a condition precedent to reinstatement and would be binding upon him. On the other hand, had there been no lapse of the original policy, that is, if he had not in fact been suspended as for nonpayment of dues, as set out in the application for reinstatement in 1915, and which was approved June 9, 1915, and the statements made were induced through a mutual mistake or through a mistake of the insured improperly induced by the defendant, he was not bound thereby.
The statements made in the application for reinstatement, though not conclusive, were prima facie evidence that the insured had been suspended for nonpayment of dues, and made it incumbent upon the plaintiff to show that he had not been properly suspended, notwithstanding the application and attempted reinstatement. The plaintiff attempted to do this by showing divers and sundry receipts for dues and assessments, and whether or not this evidence negatived a suspension or the right to suspend, under the terms of the policy and constitution and bylaws of the order, is a question of fact which should probably be left to the jury, unless, of course, the evidence upon the next trial should be such, as to a valid suspension vel non, as to make it a question for the court.
It is true there is a clause in the certificate that "receipts given for overdue assessments are not valid unless the member has first been reinstated in accordance with the laws of the order." But it was a question of fact as to whether or not the receipts given were for "overdue" or presently due assessments. Moreover, this clause could be waived by the order by an agent authorized to receive payments and give receipts. It was inserted for the benefit of the order, and it could at its own volition take advantage or waive it and delegate to agents the implied power vested in the president in conjunction with the secretary or actuary. United States Life Co. v. Lesser,
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
McCLELLAN, SAYRE, and GARDNER, JJ., concur.