Beason v. Sovereign Camp, W. O. W.

• Decision Date: 26 October 1922
• Docket Number: 7 Div. 192.
• Citation: 94 So. 123,208 Ala. 276
• Parties: BEASON v. SOVEREIGN CAMP, W. O. W.
• Court: Alabama Supreme Court

94 So. 123

208 Ala. 276

BEASON v. SOVEREIGN CAMP, W. O. W.

7 Div. 192.

Supreme Court of Alabama

October 26, 1922

Appeal from Circuit Court, Cleburne County; A. P. Agee, Judge.

Suit by Minnie C. Beason against the Sovereign Camp of the Woodmen of the World. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Merrill & Jones, of Heflin, for appellant.

C. H Roquemore, of Montgomery, for appellee.

McCLELLAN J.

The court, upon request, gave general affirmative instruction for the defendant, appellee, in appellant's action on a benefit certificate, payable to appellant, issued in September, 1917, by the defendant, insuring the life of L. T Beason who died of a form of cancer on April 9, 1919.

The first amendment of the complaint-effected by substitution of three counts for the original complaint-included, along with a claim on the "policy," a claim for $100 "towards the erection of a monument to the memory of" the insured. Aside from the ground of demurrer taking the objection of misjoinder of causes of action in one count, demurrer was not appropriate to test the sufficiency of the claim for $100, since only in exceptional cases will demurrer lie to a part of a count. Ansley v. Bank, 113 Ala. 477, 478, 21 So. 59, 59 Am. St. Rep. 122.

As for the objection of misjoinder, the counts do not on their face disclose that the cause of action based on the "policy" was a distinct cause of action from that declared on in respect of the $100 towards the erection of a monument. For aught that appears from the averments of these counts, the agreement to pay the $100 was expressed in the "policy" insuring Beason. The fourth count separately claimed the $100 in this form:

"Count 4. And the plaintiff claims the other, further and additional sum of $100, which the defendant agreed in writing as a part of the condition of said policy to pay, in the following language, to wit: 'There shall also be paid the sum of one hundred dollars for the erection of a monument to his memory [meaning the memory of L. T. Beason, deceased], as provided in the constitution and by-laws of the society']and that said amount is past due and unpaid."

The judgment entry recites that demurrer to count 4 was sustained. There is no demurrer to count 4 in the transcript. The demurrers to counts 1, 2, and 3 of the amended (substituted) complaint were filed September 8, 1920; and count 4 was filed the next day, September 9, 1920. In view of the phrase quoted from the "policy" in count 4, wherein provisions in the order's laws are specifically made an element of the definition of the obligation to pay the $100 towards a monument, it cannot be affirmed that count 4 was not demurrable on any ground; and hence, in the absence of the demurrer to count 4, error cannot be predicated of the action of the court in sustaining demurrer to count 4. When reference is had to appropriate provisions in the order's constitution and by-laws, set out in the evidence and mentioned in count 4, it appears that neither the insured nor his beneficiary was promised or assured the payment of this monument fund; the stipulation being that the order would pay that amount to the contractor erecting the monument. W. O. W. v. Burgess (Miss.) 31 So. 809; W. O. W. v. Woodruff, 80 Miss. 546, 32 So. 4.

Thirteen pleas were interposed. As to pleas 1 to 12, inclusive, plaintiff's demurrers were overruled. The single assignment of error on this feature of the case is this:

"The court erred in overruling plaintiff's demurrers to defendant's pleas 2 to 12, inclusive."

This assignment, thus jointly assailing the action of the court, cannot avail appellant if any one of the pleas was not subject to the plaintiff's demurrer. Jordan v. Rice, 165 Ala. 650, 51 So. 517; Roach v. Wright, 195 Ala. 333, 70 So. 271.

Whatever may be thought of some of them, all of the pleas were not bad. Plea 8, reproduced in the report of the appeal, will serve as an illustration. This plea set up breach of warranty, in this, that in the application the applicant made untrue answer as to the date of his birth and age; that he was in fact older than his answer disclosed; and that by reason of this untrue statement he was assessed at a monthly rate materially less than he was really entitled to. The plea was sufficient under the authority of Ala. Gold Life Ins. Co. v. Garner, 77 Ala. 210. In 1 A. L. R. 463 et seq., the annotators have collected the decisions treating the subject. According to the established rules of this court, the appellants can take nothing under the joint assignment of error quoted ante.

Replication 1 to plea 2 was erroneously stricken on defendant's motion. In consonance with its view of the "policy's" provisions with respect to the existing "good health" of the insured at the time of actual delivery of the "policy," the defendant averred that insured was not then in "good health." The replication, traversing the pith of the plea, alleged the insured was in "good health" at the time averred in the plea. It was, in essence, a general replication, casting the burden of proof on the defendant under its plea 2, and should not have been stricken. Miller v. Johnson, 189 Ala. 354, 66 So. 486.

The assignment of error with reference to the action of the trial court in sustaining defendant's demurrers to replications 2 to 11, inclusive, is likewise joint. If any one of these replications was insufficient on demurrer, the assignment cannot avail appellant.

Replication 2 was addressed to plea 3 only. Plea 3 averred breach of warranty, imported by the terms of the application, consequent upon applicant's statement in the application "that he did not have or ever had had cancer or tumor," and that the statement was untrue, in that at the time applicant was afflicted with "cancer or tumor." Replication 2 read:

"(2) And in reply to defendant's plea 3 the plaintiff says that on or about the 5th day of September, 1917, the said L. T. Beason did not have cancer or tumor, so far as he had any knowledge of; that on said September 5, 1917, the said L. T. Beason was in good health so far, and had not consulted any physician on account of his health, and was not advised and did not know that he was suffering from any symptoms of any disease that might impair his health."

The second ground of demurrer to this replication-the only other ground was general-was that "it is immaterial that said Beason did not know that he had cancer at the time he made the warranty, as alleged in the plea." As appears, the demurrer confined its criticism to the immateriality of Beason's want of knowledge of his affliction with cancer whereas both the plea (3) and the replication (2) thereto denied Beason's knowledge of his affliction with tumor, which growth is not necessarily cancerous in any degree. The court erred in sustaining the demurrer to replication 2 to plea 3; so, notwithstanding the absence of knowledge or notice on the part of applicant of his affliction with either cancer or tumor, or the absence of manifestations thereof discovered by him or by a physician consulted that was not necessary to effect a contradiction of the fact, made a warranty in the application and in the contract of...