Alexander v. Woodmen of the World

• Decision Date: 13 May 1909
• Citation: 161 Ala. 561,49 So. 883
• Parties: ALEXANDER v. WOODMEN OF THE WORLD.
• Court: Alabama Supreme Court

49 So. 883

161 Ala. 561

ALEXANDER v. WOODMEN OF THE WORLD.

Supreme Court of Alabama

May 13, 1909

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Action by Truanna May Alexander against the Woodmen of the World. From a judgment for plaintiff, defendant appeals. Affirmed.

Bush &amp Bush, for appellant.

J. T Lowri and Brown & Burnett, for appellee.

MAYFIELD J.

The complaint in this case consisted of one count, which was an action and claim under a life insurance policy or certificate issued by the appellee corporation upon the life of Leroy P Blackburn for the benefit of the plaintiff. The complaint is in the form prescribed by the Code (form 12, vol. 2, p. 1196, Code 1907). To this complaint the defendant corporation filed five pleas: First, the general issue; second, a special plea setting up a condition of the policy or certificate that, if the insured died within the first year of the insurance, only one-half of the amount of the insurance, to wit, $1,000, was payable, and that the insured died within the first year. The third, fourth, and fifth were special pleas, setting up the facts: That the defendant corporation was a benevolent order; that it had adopted a constitution and by-law; that the plaintiff's insured was a member of such organization and, as such member, applied for insurance in the order; that in his application for the insurance he agreed to pay all assessments and dues for which he was liable as a member of such order; that he had never complied with such provision by paying his assessments; that, in consequence thereof, the insurance certificate had never been delivered to the insured; that, under the conditions of the certificate, application, and contract for insurance, there was to be no liability upon the insurer until the application should be accepted by a sovereign physician of the corporation, nor until the certificate should be issued and delivered to him, in person, while in good health; that the insured had never paid any of the entrance fees; that he had never been initiated or obligated into the defendant order; that he had never had delivered to him the beneficiary certificate, etc. Said pleas set out parts of the application for insurance and the conditions of the policy or certificate of insurance. On these pleas the plaintiff took issue as to the first and second; and to the third, fourth, and fifth, filed special replications. The substance of the replications was that the plaintiff's insured undertook to secure for plaintiff an insurance policy in the defendant order, known as "Woodmen of the World," and that, as he was not familiar with the methods of procuring the insurance, the work was intrusted to an officer or agent of the defendant order; that, on account of lack of reasonable diligence on the part of such officer or agent, the policy was not procured for or delivered to him during his lifetime, though by the exercise of reasonable diligence on the part of the defendant's agents the policy could and would have been delivered to him during his lifetime. The judgment entry is not certain as to the exact issues upon which the case was tried in the lower court; it reciting merely that, "issue being joined," etc. But as there seem to have been no rulings upon the demurrers, and for other reasons, we will consider the cause as if it were tried upon the issues shown by the pleadings filed.

Defendant's second plea was obviously not good as a plea in bar, for that it did not go to the right of recovery, but only to the amount of damages recoverable; but there was no demurrer to this plea, so it must be treated as a plea in bar. Neither of the special replications filed...