Allen v. Sovereign Camp, W. O. W.

• Decision Date: 12 April 1923
• Docket Number: 6 Div. 803.
• Parties: ALLEN v. SOVEREIGN CAMP, W. O. W.
• Court: Alabama Supreme Court

96 So. 67

209 Ala. 236

ALLEN v. SOVEREIGN CAMP, W. O. W.

6 Div. 803.

Supreme Court of Alabama

April 12, 1923

Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.

Action by Virgie Allen against Sovereign Camp of the Woodmen of the World. Judgment for defendant, and plaintiff appeals. Affirmed.

Goodwyn & Ross, of Bessemer, for appellant.

C. H Roquemore, of Montgomery, for appellee.

GARDNER J.

Suit upon a benefit certificate payable to the appellant, issued by the appellee, a fraternal beneficiary society.

At the conclusion of the evidence the court gave the general affirmative charge for the defendant at its written request. From the judgment following, the plaintiff prosecutes this appeal.

Upon the former appeal in this cause (Sov. Camp, W. O. W., v Allen, 206 Ala. 41, 89 So. 58), it was held that the defendant fraternal society was entitled to the affirmative charge upon the undisputed evidence in the case upon the theory that the insured had changed his occupation to that of a hazardous one without giving the notice required by the laws of the order to the local clerk of the camp, and without paying the additional assessment required therefor. The change to a hazardous occupation had occurred about seven years prior to the death of the insured-all of which is fully set forth in the opinion on former appeal. It was expressly pointed out that the by-laws provided that upon failure to insured to notify the clerk within 30 days of such change and to pay the additional assessment of 30 cents on each thousand dollars in addition to the regular assessment, "he shall stand suspended, and his benefit certificate shall be null and void."

The plaintiff's insistence that there had been a waiver is we think, fully answered upon the former appeal.

The evidence upon this appeal is not materially different, but in our opinion, in substance and effect, is practically the same. Two points of differentiation are pointed out by counsel in brief: One that witness Baty upon this last trial was not a witness for the plaintiff, and therefore she was not bond by his testimony. His testimony, however, is, in the record, substantially what he testified upon former trial, and we are not shown where it has been contradicted.

The next point of difference as between the two records, it is insisted by plaintiff, is that the testimony of witness Jones was that the clerk of the local camp, Baty, was informed that insured was employed as a...