Afro-American Sons And Daughters v. Webster

• Decision Date: 06 May 1935
• Docket Number: 31681
• Citation: 161 So. 318,172 Miss. 602
• Court: Mississippi Supreme Court
• Parties: AFRO-AMERICAN SONS AND DAUGHTERS v. WEBSTER

161 So. 318

172 Miss. 602

AFRO-AMERICAN SONS AND DAUGHTERS v. WEBSTER

No. 31681

Supreme Court of Mississippi

May 6, 1935

Division B

Suggestion Of Error Overruled June 3, 1935.

APPEAL from the circuit court of Forrest county, HON. W. J. PACK Judge.

Action by D. Talmadge Webster against Afro-American Sons and Daughters. From a judgment of the circuit court affirming a judgment of county court for plaintiff, defendant appeals. Affirmed.

Affirmed.

Currie & Currie, of Hattiesburg, for appellant.

Rule of pleading, under Annotated Code 1892, section 528, being section 526, of Mississippi Code 1930, where there is a conflict between an allegation in the bill and the recital in an exhibit the latter controls on demurrer.

McKinney v. Adams, 50 So. 474, 95 Miss. 832; House v. Gumble, 78 Miss. 259, 29 So. 71; McNeil v. Lee, 79 Miss. 455, 30 So. 821; Weir v. Jones, 84 Miss. 610, 37 So. 128; Columbian Mutual Life Assurance Society v. Herrington, 104 So. 297, 139 Miss. 826; Montgomery v. Hanover National Bank, 30 So. 635, 79 Miss. 443.

There being no designated beneficiary in the insurance contract, then the benefits payable under the policy descended to the lawful heirs of the deceased, Fannie Harris.

House v. Gumble, 78 Miss. 259, 29 So. 71.

The court committed reversible error in requiring the appellant to go to trial over its written objections.

Article 14 of chapter 127, Mississippi Code 1930.

The court had no right to proceed until appellee had shown that proper service had been had upon appellant.

Globe Rutgers Fire Ins. Co. v. Sayle, 65 So. 125; National Surety Co. v. Board of Supervisors of Holmes County, 83 So. 8.

Under the wording of the contract the benefits to be derived descended to Fannie Harris' heirs at her death. The payment of a judgment to appellee would not be a bar to a suit by the lawful heirs of Fannie Harris.

Where there is a variance between the pleadings and the evidence the proper course is to exclude the evidence.

Greer v. Bush, 57 Miss. 575; Kimbrough v. Ragsdale, 69 Miss. 674, 13 So. 830; True Hixon Lbr. Co. v. McDonough, 123 So. 855, 154 Miss. 720; Carter v. Preston et al., 51 Miss. 423; Drake v. Surget, 36 Miss. 458.

The constitution and by-laws by the very provision itself held the age question open for investigation at all times, and it fixed its liability, under the contract sued on with reference to what the facts actually showed with reference to the age, and no fraud is required to be proven in securing the policy or in making the application, nor in any other respect. If an honest investigation showed that the deceased, Fannie Harris, was over forty-five years of age, as provided by the by-laws of the order, then the only liability under the policy would be the return of the premiums.

The instructions granted appellee and appellant were contradictory and in irreconciliable conflict.

Solomon v. City Compress Co., 12 So. 339; I. C. R. R. Co. v. McGowan, 46 So. 55, 92 Miss. 603; Y. & M. V. R. R. Co. v. Cornelius, 95 So. 90; Hines v. Lockhart, 105 So. 449; Columbus & G. Ry. Co. v. Phillips, 133 So. 123, 160 Miss. 390; Terry v. Smylie, 133 So. 662, 161 Miss. 31.

Wm. Haralson, of Hattiesburg, for appellee.

The appellant has never produced the policy, the application for membership, receipts, books, nor any other evidence bearing on the issues of this case.

The appellant contends that the process was not proper for the reason that appellee did not procure a certified copy of the appointment of the insurance commissioner as agent for the appellant insurance company. It is our understanding of the law that such would only be necessary in the event of a default judgment, and then only when the declaration fails to state that the insurance commissioner was the authorized agent of the insurance company.

Brotherhood of Railroad Trainmen v. Agnew, 155 So. 205.

It is submitted that even before the plaintiff closed his case it was clearly shown that he was the beneficiary. Such being the situation, it was then incumbent upon the appellant to show otherwise.

Masonite Corporation v. Hill, 154 So. 295.

The contention of appellee is that the agent of the insurance company could not waive the provisions of the by-laws with respect to age.

London Guaranty & Accident Co. v. Miss. Central, 52 So. 787; Lewis v. Mutual Reserve Fund Life Assn., 27 So. 649; Planter Ins. Co. v. Myers, 55 Miss. 479; Fraternal Aid Union v. Whitehead, 87 So. 453; Phoenix Ins. Co. v. Bowdre, 67 Miss. 620, 19 Am. St. Rep. 326; L. & L. & G. Ins. Co. v. Sheffy, 71 Miss. 919, 16 So. 307; Big Creek Drug Co. v. Stuyvesant Ins. Co., 115 Miss. 561, 76 So. 548; Stewart v. Coleman Co., 120 Miss. 28, 81 So. 653; 45 C. J., sec. 14b, page 15; Modern Woodmen of America v. Head, 96 So. 219.

The chief complaints of appellant have been: First, that it is not shown that the plaintiff (appellee here) is the beneficiary; second, that the insured fraudulently misrepresented her age in the application. Yet the appellant has repeatedly and obstinately failed and refused to produce the policy which would have shown without any doubt who was the beneficiary. Appellant has likewise failed and refused to produce the application in which it contends the insured made false representations as to her age.

OPINION

Anderson, J.

Appellee brought this action against appellant in the county court of Forrest county on a fraternal life insurance policy issued by appellant to appellee's grandmother, Fannie Harris, deceased, in which appellee claimed to be the beneficiary. There was a trial and judgment in favor of appellee in the sum of three hundred seventy-five dollars. From that judgment appellant appealed to the circuit court of the county, where the judgment of the county court was affirmed, and from that judgment appellant prosecutes this appeal.

Appellee is the grandson of the insured, Fannie Harris. The grandmother died shortly before this suit was brought; she held an insurance policy, or "benefit certificate" as it is more often referred to in the evidence, in appellant organization. A photostatic copy of the certificate, except the back of it, was made an exhibit to the declaration. The face of the policy referred to the beneficiary without naming him. Appellee, claiming to be the beneficiary, brought this action.

Appellant assigns and argues as error the action of the court in refusing to render judgment for it upon the ground that it was not shown that appellee was the beneficiary. Whether appellee was the beneficiary in the policy--whether the right of action existed in him--was a matter in abatement. This question could not be raised during the trial, unless written notice thereof had been given by appellant with its plea stating the name of the person entitled to bring the suit. Section 514, Code of 1930. An objection that the plaintiff cannot sue, or sues by an improper name, must be made by plea in abatement. Hudson v. Poindexter, 42 Miss. 304. This was not done. The question was raised for the first time during the progress of the trial.

Section 5246, Code of 1930, provides, among other things, that no service of process on a fraternal insurance company shall be binding when it is required to appear and plead in less than thirty days from the date of the...