Kiker v. Sovereign Camp, W.O.W.

• Decision Date: 09 April 1936
• Docket Number: 7 Div. 287
• Parties: KIKER v. SOVEREIGN CAMP, W.O.W.
• Court: Alabama Supreme Court

167 So. 313

232 Ala. 151

KIKER v. SOVEREIGN CAMP, W.O.W.

7 Div. 287

Supreme Court of Alabama

April 9, 1936

Appeal from Circuit Court, Calhoun County; W.B. Merrill, Judge.

Suit on a policy of life insurance by Artie C. Kiker against the Sovereign Camp of the Woodmen of the World. From a judgment for defendant, plaintiff appeals.

Affirmed.

Roy M Woolf and John D. Bibb, both of Anniston, for appellant.

Knox Acker, Sterne & Liles, of Anniston, for appellee.

FOSTER Justice.

This is an action on a fraternal benefit policy of insurance on the life of a member.

Defendant pleaded (1) the general issue, and (2) that insured had been suspended for nonpayment of dues, pursuant to the provisions of the policy and by-laws of the order. It then set out the terms of the provision for reinstatement, providing that after 10 days, and within 3 months after suspension, he must pay all arrearages to the clerk of the local camp (or financial secretary, other designated), and deliver to him a statement of his good health, and that no reinstatement shall be effective unless he be in fact then in good health, and shall so continue for 30 days. It then alleged that on a date which was more than 10 days, and less than 3 months, he paid to the said clerk the amount of arrearages, for which a receipt was given alleging that the same shall be held in trust until all requirements are complied with; and that he was not then in good health, but suffering from an ailment from which he died within 30 days; or that if he was not then in bad health, he did not continue in good health for 30 days, for that he died within that time. Other allegations are not necessary here to relate. There is no assignment of error which presents the sufficiency of this plea.

Plaintiff then filed replications, demurrers to all were sustained except those lettered C and E.

The first assignment is as to the ruling on replication No. 13. But we think there is no material legal difference between that and C, of which plaintiff had the benefit. There is no legal difference between alleging knowledge of a fact, and knowledge of other facts which suggested inquiry which if pursued would lead to knowledge of that fact. Ala. Fuel & Iron Co. v. Denson, 208 Ala. 337, 94 So. 311.

Since no further question as to replication C is presented, no further reference will be made to it.

The only other assignments relate to the sufficiency of defendant's rejoinders 1 and 2 to replication E, since the court overruled demurrer to those rejoinders as well as to replication E. That replication alleged that one E.G. Thompson was an agent of defendant with authority to collect dues from this insured whether in arrears or not, and reported to defendant the non-payment of January and of February dues in due time, and that acting in the line of his duty as such agent he did on March 11th collect the amount of such arrearage, and required no statement of good health, but that he then knew that insured had the ailment set out in the plea, and accepted such payment and promptly sent the amount to defendant, and which was promptly received by defendant, who knew that insured had been suspended; and accepted such payment and retained same until after insured died; and that the dues for March were also duly paid to defendant on its demand, which were also retained until after the death of insured.

Rejoinder No. 1 to this replication, to which demurrer was overruled, alleges: (a) That the said E.G. Thompson was the financial secretary of the local lodge of which insured was a member, and set out the provision of the by-laws limiting his powers, and providing that he may not waive any of the provisions of the constitution, laws, and by-laws of the association, and that his acts were done solely in pursuance of his duties as such financial secretary. It also alleges: (b) That said Thompson, in addition to being such financial secretary of the local lodge, was also an organizer for defendant by authority of sections 98 and 99 of the constitution, laws, and by-laws, under a written contract set out in haec verba. In substance it was that he should organize camps, devoting his entire time to it, and to visit, harmonize, and increase the membership of existing camps, without creating any debt on the association; shall make weekly reports to the state manager; for all of which his compensation is fixed, including the entrance fees which he collects; that he will forward to the association the application fee of $1 to be collected from all accepted applicants; but that Thompson, in the transactions with insured, acted in pursuance of his duties as financial secretary of the local lodge, and not as an organizer as defined in the foregoing contract, and had no power to waive any of the conditions of the constitution, laws, and by-laws. The sufficiency of this rejoinder includes the inquiry of whether Thompson, as an organizer, had the authority to waive the conditions of reinstatement, notwithstanding the fact that as financial secretary he had no such power.

But if one occupies two positions of agency for his principal, with different powers and authority, his conduct as an agent should be referred to that position which includes his authority to do the act, although he signs his name and purports to act in the capacity of his relation which does not include the power. In any event, the one person is acting for his principal. If he has authority from the principal the latter ought to be bound, although the agent purports to act in a capacity which does not carry such authority. If we can find it in his contract as organizer, it ought to bind defendant under the...