Padgett v. Sovereign Camp, W. O. W.

• Decision Date: 25 October 1928
• Docket Number: 7 Div. 783
• Parties: PADGETT v. SOVEREIGN CAMP, W.O.W.
• Court: Alabama Supreme Court

118 So. 456

218 Ala. 255

PADGETT v. SOVEREIGN CAMP, W.O.W.

7 Div. 783

Supreme Court of Alabama

October 25, 1928

Appeal from Circuit Court, Clay County; E.S. Lyman, Judge.

Action on a policy or certificate of insurance by Edna Padgett against the Sovereign Camp of the Woodmen of the World. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Walter S. Smith, of Lineville, for appellant.

Pruet &amp Glass, of Ashland, for appellee.

BOULDIN J.

The suit is upon an insurance benefit certificate.

On the trial the court gave the affirmative charge for defendant. The correctness of this ruling under the pleadings and proof is the controlling question in the case.

The defendant pleaded a provision of the constitution, made a part of the contract, to the effect that no liability shall begin until the insured member shall have delivered to him in person, his beneficiary certificate "while in good health;" also a provision of the signed certificate "warranting that he was in good health at the time the certificate or policy was delivered to him, and that he had not been sick or injured since the date of his application."

The breach alleged in plea 2 reads:

"Defendant alleges that the said Nathan E. Padgett had not complied with the constitution, laws, and by-laws of the association, and that he was not in good health at the time the certificate was issued to him, and that he had been sick or injured since the date of his application; but that at the time said certificate was delivered to him he was then suffering from an attack of appendicitis and from the effects of an operation for appendicitis which had been performed on him only a few days before said certificate was delivered to him and accepted by him; and that he had been sick or injured since the date of his application for membership in said fraternity, and that by the terms of said contract and warranty on the part of the said Nathan E. Padgett the same is null and void and of no force and effect, and the defendant is not indebted to plaintiff."

The evidence without conflict showed that pending the application for the policy the insured had an acute attack of appendicitis. An operation followed the next day. The appendix had ruptured. Drainage was provided.

On the fourth day after the operation, the patient being confined in bed, the certificate was delivered by the organizer and clerk of the local camp.

Appellant with much vigilance, presents authorities in support of an insistence that the delivery of the certificate by the local officers with full knowledge of all the facts constituted a waiver or estoppel against defendant to set up the conditions or warranties relied upon.

This insistence overlooks section 8477, Code of 1923, empowering fraternal associations to incorporate provisions in their constitutions and laws forbidding subordinate officers to waive the provisions thereof. This statute, rather than authorities cited by appellant, governs the case in hand. W.O.W. v. McHenry, 197 Ala. 541, 73 So. 97; Beiser v. W.O.W., 199 Ala. 43, 74 So. 235; W.O.W. v. Allen, 206 Ala. 41, 89 So. 58; Modern Order of Praetorians v. Childs, 214 Ala. 403, 108 So. 23; Police & Fireman's Ins. Ass'n v. Crabtree, 215 Ala. 36, 109 So. 156.

Another insistence is that the misrepresentation or warranty of good health relied upon is not shown by uncontroverted evidence to have been made with actual intent to deceive, or that the matter misrepresented...