Sovereign Camp of W. O. W. v. Ward

• Decision Date: 10 February 1916
• Docket Number: 3 Div. 215
• Citation: 71 So. 404,196 Ala. 327
• Parties: SOVEREIGN CAMP OF WOODMEN OF THE WORLD v. WARD.
• Court: Alabama Supreme Court

71 So. 404

196 Ala. 327

SOVEREIGN CAMP OF WOODMEN OF THE WORLD v. WARD.

3 Div. 215

Supreme Court of Alabama

February 10, 1916

Rehearing Denied March 30, 1916

Appeal from Circuit Court, Butler County; A.E. Gamble, Judge.

Action by Nettie B. Ward against Sovereign Camp of the Woodmen of the World. Judgment for the plaintiff, and defendant appeals. Reversed and remanded.

The defenses were the general issue, the suicide clause, and the by-laws of the order relative thereto. The matter relative to the jurors sufficiently appears. There was some controversy between attorneys as to the forwarding of notice and proof of death to the office in Omaha, Neb., but it appears that it was forwarded by a local clerk, and it appeared that notice to produce these writings had been given about 24 hours before trial, and that the notice was waived, but defendant's attorney insisted the notice was not sufficient in point of time to get the original documents from Omaha, Neb., and the court, over defendant's objection, permitted proof to be made thereof, and also permitted plaintiff to introduce a letter directed to J.S Kern as clerk of the camp, and signed by A.H. Burnett general attorney, the contents of which were substantially that the report indicated that Mr. Ward committed suicide and that, not having been a member for five years, he was not entitled to anything, but under the circumstances the attorney expressed a willingness to recommend a small amount in compromise. The witnesses Pierce and Kern testifying said they knew Ward, that he died about 6 o'clock in the evening, and that they said he died from taking carbolic acid, that it smelled like acid, and that he had a sore on his mouth. On motion of plaintiff, the court excluded statement that they said it was carbolic acid. The witness Hawkins testifying as a physician relative to his examination of the body of Ward, stated that he examined his pockets, and in an inside vest pocket found a note, which he gave to Mr Waller, Ward's father-in-law, and that Mr. Waller had it the last time he saw it, and that he did not know where the note was now. Waller, testifying, stated that he was served with a subpoena to bring in the papers or writings in his possession found on the body of Ward, but that he did not know what had become of the note, that he laid it aside, and had not seen it since. On this proof, the defendant reintroduced Dr. Hawkins, and asked for the contents of the note. Upon plaintiff's objection, the court refused to permit witness to testify.

C.H. Roquemore and E.T. Graham, both of Montgomery, and C.F. Winkler, of Greenville, for appellant.

Powell & Hamilton, of Greenville, for appellee.

THOMAS J.

In a suit on a life insurance contract, the complaint must show that the liability accrued within the period covered by the policy. Eminent Household, etc., v. Gallant, 69 So. 884; U.S.H. & A. Ins. Co. v. Savage, 185 Ala. 232, 64 So. 340; Pence v. Mutual, etc., Co., 180 Ala. 583, 61 So. 817; U.S.H. & A. Ins. Co. v. Veitch, 161 Ala. 630, 50 So. 95.

The complaint was not subject to the demurrers directed against it. The complaint alleges:

"Nettie B. Ward, Plaintiff, v. Sovereign Camp of the Woodmen of the World.

"The plaintiff claims of

the defendant the sum of two thousand and 00/100 dollars, due on a certificate of insurance issued by the defendant to J.R. Ward on, to wit, the 6th day of May, 1914, in and by the terms of which the defendant agreed to pay to the plaintiff, who was the wife of the said J.R. Ward, the sum of two thousand dollars upon his death.

"Plaintiff avers that the said J.R. Ward died on, to wit, the 15th day of December, 1914; that the defendant has had notice of his death; and that said certificate of insurance is the property of the plaintiff."

Assignments of error numbered from 2 to 12, inclusive, challenge the ruling of the trial court as to the competency of jurors Douglas, Kirkpatrick, Dees, and Mills, for that, in response to questions propounded to the jurors upon their voir dire to ascertain if any of them were members of the defendant order, said jurors on the panel answered that they "were members of the defendant order"; and one of these jurors, Dees, against defendant's objection and exception, became a member of the jury trying the cause.

In Calhoun County v. Watson, 152 Ala. 554, 44 So. 702, a suit against the county to recover ex officio services by the clerk of the circuit court, challenges were sustained of jurors who were in the employment of the county commissioners as such. The court held that trial judges cannot be too zealous in ridding the jury of men whose interest and environment is calculated to sway them in the slightest degree. The fact that the jurors excused by the court were employed by the commissioners might be but slight incentive to bias, yet it was the action of the commissioners that was being assailed by this suit. Louisville & Nashville R. Co. v. Young, 168 Ala. 551, 53 So. 213; Stennett v. City of Bessemer, 154 Ala. 637, 45 So. 890.

In Woodmen of the World v. Wright, 7 Ala.App. 255, 60 So. 1006, questions were propounded to the jurors to ascertain if either was a member of the defendant order, and the exception was reserved by the defendant to such qualification by the court. It was held that the question touching such membership and, of necessity, their qualification, was proper.

In Stennett v. City of Bessemer, supra, it was held that the court was justified in excusing a juror who had a similar case against the defendant, because "the law implies a bias"; and in L. & N.R. Co. v. Young, supra, the jurors in question were employes of the...