Police & Firemen's Ins. Ass'n v. Crabtree

• Decision Date: 17 June 1926
• Docket Number: 6 Div. 737
• Citation: 109 So. 156,215 Ala. 36
• Court: Alabama Supreme Court
• Parties: POLICE & FIREMEN'S INS. ASS'N v. CRABTREE.

109 So. 156

215 Ala. 36

POLICE & FIREMEN'S INS. ASS'N v. CRABTREE.

6 Div. 737

Supreme Court of Alabama

June 17, 1926

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action by John D. Crabtree against the Police & Firemen's Insurance Association. From a judgment for plaintiff defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Reversed and remanded.

Erle Pettus, of Birmingham, for appellant.

W.S Pritchard and J.D. Higgins, both of Birmingham, for appellee.

SAYRE J.

Suit on a policy of health insurance. There was extended pleading. The appeal is by defendant on the record proper; there being no bill of exceptions. The merits of the case, so far as disclosed by the pleading, may be reached and determined by consideration of the trial court's rulings on the demurrers to the complaint, plea 4, replication 10, and rejoinder F.

The demurrer to the complaint, stated in a single count, was properly overruled. The complaint followed the form of complaint on a policy of life insurance as shown by form 12 section 9531, of the Code of 1923, a closely analogical case. It will be noted that the form referred to differs from the form prescribed by the Code of 1907 (section 5382), in that the form of later date omits the allegation "for the term of _______ years." However, the allegation of the complaint, after stating the date of the policy, is that defendant "insured for the term of one month, and from month to month thereafter, so long as the monthly premium was paid, the health of the plaintiff. *** And plaintiff avers that he paid the monthly premiums covering the time when he became ill," so that defendant's grounds of objection to the complaint, viz. that the policy is not thereby shown to be in effect at the time of plaintiff's illness, and fails to allege its date and the term of its operation--these objections are answered by the specific allegations of the complaint. The demurrer was properly overruled.

The proper matter of defendant's fourth plea was that plaintiff became delinquent, and was not entitled to benefits under his alleged policy, by reason that he failed to pay his dues for the month of July, 1923, and thereafter in, to wit, August, 1923, became ill. This matter was substantially covered by special plea 5, which went to the jury, and, indeed, by the general issue, which answered, among other things, the allegation of the complaint that plaintiff had paid the monthly premiums covering the time when he became ill. As for the rest of the plea, it witnessed an effort to answer in anticipation a matter of replication not yet pleaded. As the pleading then was, this added matter was irrelevant, and due to be left out of account in passing upon the sufficiency of the plea. There was no reversible error in sustaining the demurrer; it was error without injury.

Nor was there error in overruling the demurrer to replication 10. The objection to this replication proceeds upon the theory that members of the defendant association or society are, or were, at the time in question, bound by the stipulation set forth in section 8477 of the Code, which provides:

"8477. Waiver of Certain Provisions.--The constitution and laws of the society may provide that no subordinate body nor any of its subordinate officers or members shall have the power or

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