Sovereign Camp, W.O.W. v. Alford

• Decision Date: 09 June 1923
• Docket Number: 3 Div. 574.
• Citation: 98 So. 130,210 Ala. 378
• Parties: SOVEREIGN CAMP, W. O. W., v. ALFORD ET AL.
• Court: Alabama Supreme Court

98 So. 130

210 Ala. 378

SOVEREIGN CAMP, W. O. W., v. ALFORD ET AL.

3 Div. 574.

Supreme Court of Alabama

June 9, 1923

Rehearing Denied Dec. 6, 1923.

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

Action on policy or certificate of life insurance by Will Alford Cora Cook, and Albert A. Alford against the Sovereign Camp of the Woodmen of the World. From a judgment for plaintiffs defendant appeals. Affirmed.

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

Hill, Hill, Whiting & Thomas and L. A. Sanderson, all of Montgomery, for appellees.

McCLELLAN J.

The former appeal in the course of this litigation is reported in 206 Ala. 18, 89 So. 528. Since the court remains satisfied with the conclusions prevailing on that appeal, with respect to the major questions again reargued for appellant on the present appeal, it is not necessary to take further account of them, as, indeed, it is also unnecessary to repeat recitals there sufficiently made. The last trial was had on counts 4 and 6. The court gave the jury the general affirmative instruction, with hypothesis, in favor of plaintiffs.

Besides pleas seeking to bar recovery because the insured did not pay the higher rate applicable to members engaged in certain hazardous occupations-a regulation or exaction held on former appeal not binding this insured-the defendant interposed several pleas wherein it was, in substance, asserted, as upon provisions of sections of the constitution and laws of the order, that insured became suspended from membership in April, 1914, for his failure to punctually pay the March installment, and that he was never reinstated to membership, though paying April 18, 1914, the installment in default, because he omitted to give the certificate of good health required by the order; he being then in fact seriously diseased, and had been so advised by his physician. To such pleas, and in addition to general traverse of their averments, the plaintiff interposed special replications in which the following clause, in the original certificate of insurance "sued upon," issued in 1895, was set forth in avoidance of the matters asserted in such pleas:

"This certificate shall be incontestable after one year from date hereof, provided the Sovereign to whom issued has complied with all the requirements hereon." (Italics supplied.)

The replications of this class aver compliance by insured with "all the requirements" exacted by the certificate. These replications, to such pleas, were not subject to the grounds of demurrer interposed. If, as the replications aver the quoted "incontestable clause" was in the certificate issued by defendant to Alford in 1895, and upon which the beneficiaries now sue, and if, as the replications aver, the member complied "with all the requirements hereon" (the certificate), and if, as the replications aver, Alford lived and so complied more than one year after April, 1914, the defendant's right to contest liability on the certificate, on the grounds asserted in the class of pleas mentioned, was concluded by the "incontestable clause" quoted in the replications. If this incontestable clause in the original certificate issued to Alford in 1895 was subsequently effectually avoided, or...