Patton v. Endowment Department of A.F. & A.M. of Alabama

• Decision Date: 19 March 1936
• Docket Number: 3 Div. 164
• Citation: 167 So. 323,232 Ala. 236
• Parties: PATTON v. ENDOWMENT DEPARTMENT OF A.F. & A.M. OF ALABAMA.
• Court: Alabama Supreme Court

167 So. 323

232 Ala. 236

PATTON v. ENDOWMENT DEPARTMENT OF A.F. & A.M. OF ALABAMA.

3 Div. 164

Supreme Court of Alabama

March 19, 1936

Rehearing Denied April 23, 1936

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Action by Lillie Jordon Patton against the Endowment Department of A.F. & A.M. of the State of Alabama. Judgment for defendant and plaintiff appeals. Transferred from Court of Appeals.

Affirmed.

McCord & Knabe, of Montgomery, for appellant.

Harsh Harsh & Hare, of Birmingham, for appellee.

KNIGHT Justice.

Suit by appellant to recover an amount alleged to be due her by appellee under an insurance contract, in which it is alleged the appellant was the beneficiary.

The defendant pleaded in short by consent "with leave to give in evidence any thing which might be specially pleaded." This pleading on the part of defendant was in writing, and was signed by counsel for defendant.

The case was tried by the court without a jury.

The bill of exceptions, immediately following the first paragraph, contains this statement: "Note: Plead in short by consent with leave to give in evidence any thing which might be specially pleaded."

It was admitted on the trial "that James Patton (plaintiff's alleged husband) died in August, 1933, and that he was a member of the defendant Masonic order, and in good standing, and his dues in said organization paid. He was in benefit." Thereupon, the court there stated "Looks like the big issue is whether she married on September 7, 1911, and whether he was in benefit on August 1933, and whether she gave the proper notice, so far as the by-laws. Looks like the by-laws ought to be introduced for the benefit of the court." Thereupon, the following section or paragraph of the by-laws of the defendant was introduced in evidence:

"Any and all persons having a claim against the Endowment Department by reason of the death of a member must file their claims with the Endowment Secretary, together with an affidavit showing on what their claims are based, within two months from the date of the death of such deceased member, and forward the same by registered mail to the Endowment Secretary, with 'return demanded' or the same shall be forever barred from sharing in the distribution of the Endowment. Such return card shall be the only evidence that said notice and affidavit were mailed to the Endowment Secretary and if said return card has been lost, destroyed or misplaced secondary evidence cannot be substituted in its place regardless of any rules of law or evidence to the contrary notwithstanding."

"Said by-laws were in full force and effect at the time of the death of James Patton and are still in force and effect by said defendant organization."

One of appellee's insistences for an affirmance of the judgment is, that while the record discloses the defendant pleaded in short by consent, with leave to give in evidence any thing which might be specially pleaded, the record does not show that any such permission was given the plaintiff to offer matters in avoidance of defendant's defenses, and, therefore, the plaintiff's contention that defendant had waived the defense that the plaintiff had not filed her claim, with supporting affidavit, with the endowment secretary, was not an issue in the case.

In the view we take of the case, as presented by the bill of exceptions, it becomes unnecessary to determine the correctness of appellee's above-stated contention.

The bill of exceptions concludes with...