Sovereign Camp of Woodmen of the World v. Keefe

• Decision Date: 15 January 1920
• Docket Number: 6 Div. 958
• Citation: 84 So. 810,203 Ala. 636
• Parties: SOVEREIGN CAMP of WOODMEN of the WORLD v. KEEFE et al.
• Court: Alabama Supreme Court

84 So. 810

203 Ala. 636

SOVEREIGN CAMP of WOODMEN of the WORLD v. KEEFE et al.

6 Div. 958

Supreme Court of Alabama

January 15, 1920

Rehearing Denied Feb. 5, 1920

Appeal from Circuit Court, Jefferson County; H.A. Sharpe, Judge.

Action by Fred Keefe and another against the Sovereign Camp, Woodmen of the World, for a beneficiary certificate issued on the life of Will Keefe and payable to plaintiffs. Judgment for plaintiffs, and defendant appeals. Affirmed.

Plaintiffs stated their cause of action in five counts, the first three being on the beneficiary certificate, count 4 claiming for an account, and count 5 for money received by the defendant to the use of the plaintiff. The defendant answered, setting up the contract and the various provisions of the constitution and by-laws as to the manner of reinstatement after the insured has for any reason been suspended from the order. The charges referred to in the opinion are as follows:

"(1) If the jury believe the evidence, the plaintiff cannot recover under the fourth count of the complaint, and you must find your verdict for the defendant under said count."

(2) Same as 1, but applied to the fifth count.

The defendant offered and examined Dr. Levi as an expert. He testified that he only saw Will Keefe once professionally which was either on May 2 or May 3, 1918; that he examined him at that time; that he had previously observed Keefe when he was attending other members of the household; that the examination consisted of listening to Keefe's lungs through the stethoscope and concussion (a process of sounding the chest); that when he examined Keefe on May 2 or May 3 1918, he had tuberculosis in an advanced and easily ascertainable degree; that Keefe died of tuberculosis, on May 3, 1918; and that having died of tuberculosis, he had the disease on April 16, 1918 (seventeen days before), the date to which Keefe's reinstatement as an insured member is referred.

Dr C.W. Wright testified, among other things, that he gave Will Keefe a physical examination on April 16, 1918; that "at that time Will Keefe had a cold on his lungs, but otherwise was in good health, so far as I [he] could tell;" that "it is not possible for a man to determine whether a man has tuberculosis without making a microscopic examination of his sputum until he is almost dead positive, and then I don't know that you could then. To be sure there would have to be a microscopic examination of his sputum; there is also a blood test. The safest and the surest and most certain way is to examine the sputum and the blood test. *** I could not tell that he looked any worse than the last time I saw him a year or two before that. His physical appearance was good; was about as usual. *** His complexion was good, he had no temperature, and his pulse was about 85. The average man's pulse is about 75, sometimes runs as high as 85 or 90, which I passed as normal with him." There was other testimony by this witness calculated to reflect upon the opinions he expressed in the matter above quoted. There was other evidence tending to show that Keefe's health had not been impaired on April 16, 1918.

The answers by the defendant to the interrogatories propounded under the statute showed that Keefe's reinstatement papers, accompanied by payment, reached the principal office at Omaha, Neb., on April 20, 1918, and that on April 22 1918, he was entered on the records of the order as a reinstated member.

In the oral charge of the court, to which no exception was reserved, the jury was instructed as follows:

"The jury are the judges of the fact, and have heard the testimony with respect to the condition of Will Keefe's health at the time of this alleged reinstatement; and, as throwing light on the subject, you have the testimony of the physicians. An expert such as a physician, in good standing--his evidence is admissible on questions of that kind, not as being positively binding on the jury, but as throwing light on the question wherein they testify. An expert is supposed to have the peculiar knowledge of the subject on which he is allowed to testify, and his testimony goes to the jury for what it is worth, not to be absolutely binding unless the jury find so, in its opinion and discretion."

C.H. Roquemore, of Montgomery, for appellant.

Hugh H. Ellis, of Birmingham, for appellees.

McCLELLAN J.

This action, instituted by the appellees against the appellant sought recovery on an insurance certificate issued by the appellant to Will Keefe, payable to appellees upon his death while a member in good standing of the order. Keefe was a member of the order, and insured therein for several years. About January 1, 1918, his insurance was forfeited for nonpayment of an assessment. ...