Modern Order of Praetorians v. Wilkins
| Decision Date | 21 November 1929 |
| Docket Number | 6 Div. 367. |
| Citation | 220 Ala. 382,125 So. 396 |
| Parties | MODERN ORDER OF PRAETORIANS v. WILKINS. |
| Court | Alabama Supreme Court |
Rehearing Denied Jan. 16, 1930.
Apppeal from Circuit Court, Jefferson County; Richard V. Evans Judge.
Action by Leila B. Wilkins against the Modern Order of Praetorians. From a judgment for plaintiff, defendant appeals. Affirmed.
Hugh A Locke, Frederick V. Wells, and H. M. Abercrombie, all of Birmingham, for appellant.
Altman & Koenig, of Birmingham, for appellee.
Count B of the complaint upon which the cause was tried was not subject to demurrer for failure to show the suit is on the insurance benefit certificate, or failure to connect the claim with such certificate.
True it does not expressly aver the suit is for an amount due on the certificate; but it recites all the conditions upon which a matured demand thereon in favor of plaintiff-beneficiary arose, and concludes, "wherefore plaintiff claims" the amount named in the policy or certificate. "Wherefore"-for this cause-the suit is brought. It is immaterial whether this fact is shown at the beginning or at the conclusion of the count.
The Code form of complaint upon a policy of insurance, No. 12, is not applicable to fraternal insurance contracts. Gilliland v. Order of Rwy. Conductors, 216 Ala. 13, 112 So. 225. But a complaint averring the essential facts in like general terms is sufficient. Police & Firemen's Ins. Ass'n v. Crabtree, 215 Ala. 36, 109 So. 156.
The certificate, a written instrument, the foundation of the suit, was admissible in evidence without proof of execution, in absence of a plea denying execution. Code 1923, § 7663.
The provision of the constitution of order set up in plea No. 2 reads:
"If a person over fifty-five years of age shall be admitted to membership upon such misstatement of age, the Order will not be liable upon his certificate except for the return of the amount paid by him into the Benefit fund, with five per cent. compound interest."
This provision does not avoid the certificate in toto for misstatement of age by one above the insurable age limit. By its terms it looks to a recovery in an action on the certificate by the beneficiary of the amount paid by or for the member "into the Benefit fund, with five per cent. compound interest." This liability is not limited to cases of innocent misstatement of age. In this regard the rules of this Order are somewhat more liberal than the prevailing rule in the absence of such provision. Under such general rule a willful, fraudulent misstatement of age by one over the insurable age limit defeats any action for return of money paid for insurance so obtained. Taylor v. Grand Lodge, 96 Minn. 441, 105 N.W. 408, 3 L. R. A. (N. S.) 114; De Loach v. Ozark Mut. Life Ins. Co., 148 Ark. 414, 230 S.W. 268, 14 A. L. R. 921; 45 C.J. 63. Whether this is governed in this state by Code 1923, § 8365, it is not necessary to inquire.
We cannot construe plea No. 2 as one to limit the recovery to the amount stipulated in the quoted provision. It is a plea in bar of all recovery. The court below was warranted in treating it as one in bar of all recovery for fraud in obtaining the insurance.
Demurrer to this plea was sustained without error. The same observations apply to plea No. 3.
Pleas 4 and 5 invoke in bar of recovery the following provisions of the contract:
"Provided: That this Order shall not be liable for the payment of any sum hereunder, unless said member has fully complied with all the terms and conditions of its Constitution and laws and has not untruthfully answered any question or made any untruthful statements in the application or untruthful statements to the medical examiner of the Order upon the faith of which this certificate is issued (said Constitution, laws, application, statements and the Charter of the Order being expressly made a part hereof)."
They allege that in making the application the insured warranted his age at 48, when in fact it was 57; that the truth...
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