Sovereign Camp, W.O.W. v. Hoomes

• Decision Date: 25 April 1929
• Docket Number: 2 Div. 937.
• Citation: 122 So. 686,219 Ala. 560
• Parties: SOVEREIGN CAMP, W. O. W., v. HOOMES.
• Court: Alabama Supreme Court

122 So. 686

219 Ala. 560

SOVEREIGN CAMP, W. O. W., v. HOOMES.

2 Div. 937.

Supreme Court of Alabama

April 25, 1929

Rehearing Denied June 13, 1929.

Appeal from Circuit Court, Wilcox County; Thomas E. Knight, Judge.

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

Brown J., dissenting.

Bonner & Miller, of Camden, for appellant.

S. C Godbold, of Camden, and Hobbs, Craig & Brown, of Selma, for appellee.

THOMAS J.

The suit was upon a certificate by appellant of date of July 30, 1907, insuring the life of appellee's husband, who died July 12, 1926. The contract between the Sovereign Camp, Woodmen of the World, and deceased consisted of his application, the beneficiary certificate issued pursuant thereto, the constitution and by-laws of the association then in force and thereafter duly enacted.

The sections of law urged by appellant as particularly applicable are sections 63-69 of the Laws of 1925, which are set out in the record. Those pointed to by appellee are section 71(a) and section 71(b). The original books in evidence fail to show that there was a suspension, and no question of reinstatement is presented. The right to pay the same or the originally prescribed rate is construed as an acceptance of the option for a lien to be entered against his certificate for the difference. Section 56, Constitution and Laws 1915.

The written agreement of counsel limits the issues to the following, viz.: Whether or not deceased was a member in good standing at the time of death; whether or not he was indebted in any sum as alleged in plea of set-off. The other facts set forth in the complaint made out a prima facie case for plaintiff. Manhattan Life Ins. Co. v. Verneuille, 156 Ala. 592, 47 So. 72; Sovereign Camp v. Adams, 204 Ala. 667, 86 So. 737; Sovereign Camp v. Burrell, 204 Ala. 210, 85 So. 762; Sovereign Camp v. Bass,

207 Ala. 558, 93 So. 537.

Issue was joined on the general issue (plea 1), and on pleas 2, 3, 4, and 5, setting up forfeiture on account of nonpayment of assessments (for the months of April, May and June, 1926), and the failure thereafter to comply with the association's laws necessary to a reinstatement. The further plea of set-off (plea 6) alleged that deceased paid the required amount of the increased rate and amount upon his certificate to December 31, 1919, when an increased rate became effective as to him and his class of certificate or risk, and thereafter did not pay the increased rate, in that he "elected to pay the old rate," and that a lien was allowed to accumulate against the certificate for the balance or increased or additional sums. And it is the insistence of appellant that these sums (alleged in the plea to be $175 and $5.47) with interest thereon, after certain deductions of $9.34, amounted to $235.50 on July 1, 1926.

It is established that a proper predicate be laid to authorize secondary proof, or that due notice to produce be given. Section 7774, Code; W. O. W. v. Ward, 196 Ala. 327, 71 So. 404; Woodmen of the World v. Maynor, 206 Ala. 176, 89 So. 750. Appellant insists upon error in the overruling of objection to the introduction in evidence of the record sheets of the local camp of dates of April, May, June, and July, 1926, and in overruling motion to exclude. The evidence of Pulaski, the clerk of said local camp, showed that the sheets-originals and carbon copies thereof-were made at the same time; that the originals were sent to the clerk of the home office at Omaha and the carbon copies thereof retained by the officer of the local camp and were the same as those offered as evidence. It has been established in this court that carbon copies made in due regular course of business are for the purposes of evidence duplicate originals, and in the absence of suspicious circumstances, such as mutilation and change, are primary evidence. Campbell Motor Co. v. Brewer, 212 Ala. 50, 101 So. 748; Liverpool & London & Globe Ins. Co. v. McCree, 213 Ala. 534, 105 So. 901. There was no error in that ruling. See, also, Sandlin v. Anders, 205 Ala. 453, 88 So. 560; L. & N. R. Co. v. McGuire, 79 Ala. 395; Smith v. Sharp, 210 Ala. 587, 98 So. 566.

It is immaterial by whom the dues are paid, if those required by the law or rule of the association are paid. Sovereign Camp, W. O. W., v. Graham, 214 Ala. 239, 107 So. 98. It is true the local clerk cannot waive the provisions of the constitution and by-laws of the order not fully complied with. Sovereign Camp, W. O. W., v. Blanks, 208 Ala. 449, 94 So. 554. The burden of going forward with the evidence as to nonpayment of the required dues, and as to other matters covered by the special pleas, was upon defendant. Ex parte Gay (Sovereign Camp, W. O. W., v. Gay), 213 Ala. 5, 104 So. 898; Sovereign Camp, W. O. W., v. Gay, 20 Ala. App. 650, 104 So. 895.

In the instant case there was no formal action of suspension for nonpayment of assessments for the months of April to July; the evidence shows the same to have been paid to the home office, but when and by whom is not indicated. The home office at Omaha received the money from or for the assured for those months. Who paid the same to the local camp officer for transmission to the home office is not indicated. The assured's letter indicates that he was handing the amount to the local official pursuant to or under some private agreement with that or former official. And under all the evidence the question of forfeiture for nonpayment of assessments for April, May, and June was for the jury. The 30 days of grace had not expired as to the July assessment-the month in which he died. Adams v. Woodmen of the World, 201 Ala. 166, 77 So. 692.

The trial court was in error in excluding the answer which was made by one with a knowledge of the fact, that assured having "elected to pay the former rate and allow a lien charge to go against the policy," if the policy was a binding claim on the defendant, the net amount due on the death benefit was reduced by the difference in the several monthly assessments and interest (viz., by $235.34, the amount of such lien charges), and that the net amount due the beneficiary was $764.66.

Since writing the foregoing it is suggested that question and answer were not a shorthand rendition of fact, but were unauthorized conclusion or expression of opinion that invaded the province of the jury. It will be noted on inspection that the question and answer left the issue of liability vel non with the jury. It did not assume that the policy was not a good and binding claim on defendant. It was: "If said policy was a good and binding claim on the defendant, what would be the net amount thereof?" The objection made to question 7 was rested on specific grounds stated, viz.: (a) Lien charge or agreement best evidence; (b) seeks to vary the contract; (c) is illegal and incompetent; (d) invades the province of the jury; (e) assumes the policy not binding; (f) the policy is best evidence. The ruling of the trial court in sustaining objection and rejecting the answer to that interrogatory cannot be justified on stated grounds. We shall show the evidence sought was competent and legal. The question did not assume "that the policy is not a good and binding claim on defendant," nor "that the policy is the best evidence of the amount due under its terms." As we have indicated, the beneficiary certificate declared upon, the constitution, the respective by-laws, of the association which were of force at the time Hoomes became an assured member, and the constitution and laws thereafter of force to and at the time of his death, constituted the contract of the parties and was that which affected liability vel non, and, if there was liability, the amount due thereon. It is apparent that the policy alone, aside from the later constitutions and laws of the order having application from time to time, was not the "best evidence of the amount due under its terms," since the terms thereof were subject to lawful charges.

The lien charge against the certificate and amount due thereon is by contract of the parties-the difference between the rate paid by assured and the lawful rate of force at the time of said monthly payments. It is provided (in section 56 of the 1915 Laws, sections 56 and 100 of the Laws of 1917, and section 60 of the Laws of 1919, and section 59 of the Laws of 1925), that the mere "failure to pay the advanced rate on or before October 1st, *** by any member, shall be construed as an acceptance of the option for a lien to be entered against his certificate." The fact of such law and right of change of monthly rate and accrual of lien charges is not questioned or challenged by a ground of objection. This right is the contract entering into the certificate. The competency of the witness as an expert or one in charge of the books of defendant, and with a knowledge of the facts, is likewise not made a ground of objection. He was the sovereign accounting officer of the order, was so declared and his duties so specified by its laws.

How may the net amount that is due defendant be shown? We have collected some of our cases that illustrate an exception that has been permitted to the general rule of best evidence ( Caddell v. State, 129 Ala. 59, 30 So. 76) in that of a shorthand rendition of fact. Some of our cases are as follows: Brindley v. State, 193 Ala. 43, 69 So. 536 Ann. Cas. 1916E, 177, where evidence "that there were fresh-shod foot impressions," etc., was admissible; Mayberry v. State, 107 Ala. 64, 18 So. 219, in which witness was permitted to testify that he saw "something in the defendant's pocket that looked like a pistol"; A. G. S. R. R. Co. v....