49 So. 354 | Ala. | 1909
Appellant is a fraternal and mutual benefit association, and as such on the 24th day of February, 1895, issued to James M. Hooser (who was the husband of the appellee) a benefit certificate, by the terms of which it undertook to pay appellee, as beneficiary, $2,000 at the death of the insured upon certain recited conditions. The insured died on the 6th day of August, 1906. Appellant refused to pay the claim, and appellee brought this action on the certificate to enforce payment. The trial of the cause in the court below resulted in verdict and judgment in favor of the plaintiff in the sum of $2,000, and the defendant appealed.
The complaint as amended is substantially, if not precisely, in Code form (Code 1896, p. 945, § 3352, form 12), as upon a policy of life insurance, and is not subject to any ground of the demurrer interposed thereto. — Commercial Fire Ins. Co. v. Capital City Ins. Co., 81 Ala. 320, 8 South. 222, 60 Am. Rep. 162. The case of Commercial, etc., Co. v. Morris & Co., 105 Ala. 498, 18
The defendant for answer to the complaint interposed seven pleas. One and two are pleas of the general issue. Plea 3 avers that the policy provides that payment thereon is conditioned upon the insurant’s being in good standing in the order at the time of his death, and avers that insurant was not in good standing a.t the time of
Demurrers to pleas 3, 4, 5, 6, and 7, were overruled, whereupon plaintiff filed three special replications. The first of these, as the record shows, is addressed to “defendant’s second plea,” and sets up a waiver of forfeiture, in that the defendant accepted on July 31, 1906, the dues of the insurant for the months of June and July, 1906, and avers that the insurant was in good standing. It is apparent that the replication is entirely inapt, as an answer to plea 2 — the general issue — and. we have considered whether or not we should treat it as being addressed to another of the pleas; but the demurrer of the defendant is addressed to it as a, replication to the second plea, and the next replication (No. 2) begins as follows: “The plaintiff, replying to pleas 3, 4, 5, 6, and 7, says,” etc. We know of no- rule by which we may overcome these difficulties, and tread the-replication as directed to any one of the other pleas. Argument is unnecessary to show that the replication is subject to one or more of the grounds of the demurrer addressed thereto. Special replication 2 went out on demurrer being sustained to it. Replication 3 is in this language: “(3) The plaintiff, further answering pleas 3, 4, 5, 6, and 7, says that they waived the disconnection
The defendant, after its demurrer to replications 1 •and 3 was overruled, denied the allegations of the replications, and filed two special rejoinders, numbered 1 and 2. Rejoinder 1 is in this language: “That by section 3 of law 12 of the order of defendant it is provided that, if more than thirty days have elapsed since the disconnection of a member, such member can only be reinstated by applying to the commandery of which he is a. member, and pay in full all dues, assessments, and fines charged against him and unpaid, and furnish the commandery with a certificate from a medical examiner of the order approved by the supreme medical director as to his fitness and condition, and a ballot shall then be ordered by the noble commander, and, if a majority of the votes cast are favorable,-he shall be declared a member, otherwise he shall be declared rejected; that, notwithstanding the lapse of more than 30 days from the disconnection of plaintiff’s intestate prior to his death as aforesaid in said pleas, yet said intestate had wholly failed to furnish said certificate, and had not been declared a member as provided in said law 12, § .3.” Rejoinder 2 is as follows: “Defendant further says
It was decided in the case of Supreme Commandery, etc., v. Ainsworth, 71 Ala. 436, 46 Am. Rep. 33, that '“the members of such companies (as theirs) are presumed to know the charter and by laws, and to contract in preference to them, though they may not be recited or referred to in the contract.” — Fraternal Union, etc., v. Zeigler, 145 Ala. 287, 39 South. 751. This being true, according to the certificate of membership here, when read in connection with the by-laws of the organization, failure to pay dues by midnight of the last day of the month for which such dues were payable (June 30, 1906) ipso facto disconnected the certificate holder from the organization, and thereby automatically worked a
This question is one upon which the decisions of the courts in this country are in conflict; and we are not aware of the fact if this court has ever taken position upon either side of the question, though appellant’s counsel in their brief cite the case of Boyd v. Southern Mutual Aid Association, 145 Ala. 168, 41 South. 164, and seem to construe it as being conclusive of the ques
The following cases support the view expressed above:
—State ex rel. Young v. Temperance, etc., Ass’n., 42 Mo. App. 485; Karcher v. Supreme Lodge, etc., 137 Mass. 368; Hall v. Supreme Lodge, etc., (D. C.) 24 Fed. 450; Rood v. Railway, etc., (C. C.) 31 Fed. 62 ; Modern Woodmen, etc., v. Tevis, 117 Fed. 369, 54 C. C. A. 293; Supreme Lodge, etc., v. Jones, 35 Ind. App. 121, 69 N. E. 718; Grand Lodge, etc., v. Jesse, 50 Ill. App. 101; United Moderns v. Pike, (Tex. Civ. App.) 76 g. W. 774; Sovereign Camp, etc., v. Rothschild, 15 Tex. Civ. App. 463, 40 S. W. 553; Brown v. Grand Council, etc., 81 Iowa, 400, 46 N. W. 1086; Lavin v. Grand Lodge, etc., 104 Mo. App. 1, 78 S. W. 325; Graves v. Modern Woodmen, etc., 85 Minn. 396, 89 N. W. 6; Field v. National Council, etc., 64 Neb. 226, 89 N. W. 773; Rice v. Grand Lodge, etc., 103 Iowa, 643, 72 N. W. 770; Sweetser Odd Fellows, etc., Ass’n., 117 Ind. 97, 19 N. E. 722; Crossman v. Mass., etc., Ass’n., 143 Mass. 435, 9 N. E. 753; Royal Highlanders v. Scovill, 66 Neb. 213, 92 N. W. 206, 4 L. R. A. (N. S.) 421.
On the other hand, it is held that, as in all other cases forfeiture of the insurance provided by mutual benefit associations is not favored by the courts, they, in construing the conditions of membership where a forfeiture is claimed, will preserve, if possible, the equitable rights of the holder of the certificate of membership, and that forfeiture of membership resulting from nonpayment of plan dues may be waived; further, that where a subordinate lodge of an organization, through its officers, collects from its membership assessments and dues payable to the organization, such subordinate lodge or its officers are to be considered the agents of the organization, and they may, by collecting and retaining dues in
The business of insurance companies, Avhether conducted on the mutual or the stock is of necessity managed by its officers and agents, and it has been held that an officer of a mutual benefit association Avho is its executive head, keeping its records, holding its funds in trust, and paying out the same on approval, has power to bind the association by waiving a forfeiture proAdded in its by laws. — Moore v. Order of Railway Conductors, 90 Iowa, 721, 57 N. W. 623. We note here that, under the pleadings, the authority of any particular officer to receive assessments or dues in arrears does not. necessarily arise, as it is averred in the surrejoinder that “the order by accepting said dues for June and July, 1906, on July 31st, 1906, waived the right to claim a forfeiture for said months of June and July 1906.” This, of course, implies that the officer or agent who acted for the defendant Avas clothed with authority, either actual or apparent, to bind the defendant. It is the opinion of the court that forfeitures may be waived by subordinate lodges or their ministerial officers who are the agents of the supreme commandery, acting within the scope of their authority, regardless of the methods provided by the by-laws for the restoration of members to good standing. In this
Coining to the evidence, it appears that J. T. Stallings was the financial keeper of the records of the local commandery, and that, as such, it was his duty to collect from the members of that commandery their dues and assessments, to give them receipts, for the same, and to report to- the supreme commandery. The testimony shows that Stallings constituted one Caíame his agent to receive the money for dues and assessments, and to hand the receipts to the members of the order. This engagement of Caíame was consequent upon the facts that Stallings was a court stenographer, and Caíame had a permanent place of business that was open at all times of the day and of convenient access to the members of said order. The bool® were left at Calame’s place and in his charge; and the receipts for the dues, made out or signed by Stallings, were placed i.n the books to be handed out to the members. The insured, Hooser, had failed to pay his dues for June, 1906, which under the by-laws were payable not later than June 30th. The undisputed evidence shows that the money for the June and July dues of the insulted was paid by one Drake to Caíame, and that Caíame handed him the receipts (which had been duly signed by Stallings) for the same. Drake testified that the payment was made and the receipts were delivered on July 31, 1906, while Caíame testified that the money was paid about 12 o’clock August 6, 1906. The evidence without conflict shows that insured’s wife was in Nashville on a visit to her mother, and that insured followed her there on July 1, 1906, and that he was there taken ill about July 10th, such illness continuing until 10 minutes past 10 o’clock, August 6, 1906, when death ensued. Drake testified that Hoosier’s employer furnished him the money and re
The forfeiture was shown without conflict in the evidence, and it devolved upon the plaintiff to show a waiver. As was ’said in Mobile Life, etc., Co. v. Pruett, 74 Ala. 487, 498: “A receipt of a premium after a breach of the condition for its payment has occurred is doubtless a waiver of the forfeiture. The payment must however, be made to the insurer, or to an agent having authority to receive it. And it must be made fairly and honestty. There must be no misrepresentation or concealment of material facts known to the party making the payment of which the insurer cannot reasonably be presumed to have knowledge.” The bad state of Hooser’s health was a material fact. The insured knew the state of his health (he was on his deathbed, according to Drake’s version), and it cannot be presumed that the agent of the defendant knew it. It was indeed a fact peculiarly within the knowledge of the insured and it was concealed from or was not revealed to the agent. Therefore, while it might be conceded that the acts of the agent in receiving the dues in arrears might under ordinary circumstances constitute a waiver of the forfeiture, yet, under the circumstances as shown above, such act could not effect the waiver. — Bliss on Life Ins. § 190; 25 Cyc. 859. See, also, Royal Highlanders v. Scovill; Supreme Lodge, etc., v. Quinn (Miss.) ; Kennedy v. Metropolitan, etc., Co., (La.), ubi supra.
Whether or not Stallings had authority from the grand commandery or from his commandery to accept money from a member after he had been disconnected for failure to pay his dues for the month previous, it is true, was a question for the jury under proper instructions from the court; but it was nevertheless competent for Stallings to testify in a shorthand way that he had no such authority. — Gilliland v. Dunn, 136 Ala. 327, 34 South. 25. The plaintiff by cross-examination could have developed the grounds upon which the witness’ evidence was based or whether his authority was in writing. Such testimony is not an invasion of the jury’s province. The evident purpose of the question to Stallings, “I ask you to tell the jury whether or not J. M. Hooser was reinstated, as provided by section 3 of law 12 of the laws offered in evidence after June 30, 1906?” was to show that no such reinstatement had taken place; and, if it had not, there was no record of any such fact to be produced, and it might be proved by Stallings if he knew the fact.
For the errors pointed out, the judgment appealed from will be reversed and the cause remanded.
Reversed and remanded.