Sovereign Camp, W.O.W., v. Gunn, 7 Div. 32.

• Court: Supreme Court of Alabama
• Citation: 224 Ala. 444,140 So. 410
• Docket Number: 7 Div. 32.
• Parties: SOVEREIGN CAMP W. O. W. v. GUNN.
• Decision Date: 21 January 1932

140 So. 410

224 Ala. 444

SOVEREIGN CAMP W. O. W. v. GUNN.

7 Div. 32.

Supreme Court of Alabama

January 21, 1932

Rehearing Denied March 31, 1932.

Appeal from Circuit Court, Shelby County; W. B. Merrill, Judge.

Action on a policy or certificate of life insurance by Katherine R Gunn against the Sovereign Camp of the Woodmen of the World. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Testimony to show beneficiary who was convicted of killing insured had not disclosed that she had $200 in purse at time of killing should be allowed to rebut robbery theory.

The suit is upon an insurance certificate issued to Willie C Gunn, May 16, 1929, being in the sum of $1,000 and payable to the wife of the insured, Mary M. Gunn. The policy contained a provision for double indemnity in case of accidental death. The insured came to his death on the highway, while en route in an automobile, from Oxford to Jacksonville, Ala., on May 26, 1930. It appears that the beneficiary, Mary M. Gunn, or Mary Maude Gunn, alone was with him at the time, and that he died as the result of a pistol shot wound. The policy or certificate was assigned by the beneficiary to the plaintiff after the death of the insured.

Plaintiff's theory was that the insured was killed by highwaymen, who held up and robbed the insured and his wife. That of defendant is that insured was murdered by his wife, the beneficiary named in the certificate.

Count 3 of the complaint is as follows:

"Count Three. Plaintiff claims of the defendant two thousand dollars for that, whereas, on to-wit: the 16th day of May, 1929, the defendant issued a beneficiary life certificate or policy on the life of Willie C. Gunn, and plaintiff attaches hereto as Exhibit 'A' a substantial copy of said policy, with endorsements thereon.

"Plaintiff avers that said Willie C. Gunn died on, to-wit: the 26th day of May, 1930, and that his death resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental means, and within sixty days after sustaining said injuries, and she avers that he was shot on the day of his death and died immediately thereafter, and on the same day that he was shot, as aforesaid and of all of which the defendant has had notice. She further avers that at the time of the death of said Willie C. Gunn he was a member in good standing of said society referred to in said certificate, and said policy was in full force and effect at the time of the death of said Willie C. Gunn. She further avers that the beneficiary named in said certificate or policy, viz: Mary M. Gunn, has, since the death of said Willie C. Gunn, transferred and assigned to this plaintiff said policy and all of her rights and interests therein and thereto, and said policy, as aforesaid, and the proceeds thereof belong to, and are the property of, this plaintiff. Plaintiff avers that said sum sued for, with interest thereon, is the property of this plaintiff."

Pleas 3 and 4 set up a provision of the certificate to the effect that, "if the member holding this certificate *** should die *** by the hands of the beneficiary or beneficiaries, or any of them, whether sane or insane, except by accident on the part of the beneficiary; or from wounds intentionally inflicted by the beneficiary or beneficiaries, or any of them *** the certificate shall be null and void and of no effect," etc. Plea 3 avers that the beneficiary named in the certificate was Mary M. Gunn, the wife of insured, and that the certificate holder came to his death at the hands of the beneficiary, and that the same was not by accident. Plea 4 avers that the certificate holder came to his death from gunshot or pistol wounds intentionally inflicted by the beneficiary.

Pleas 5 and 6 say that the plaintiff is not entitled to recover, averring (5) that the beneficiary "unlawfully, intentionally and feloniously took the life of the insured," and (6) "the said Willie C. Gunn was murdered by said beneficiary"; and that thereafter said beneficiary assigned or attempted to assign the certificate to plaintiff.

Plea 7 sets up that the defendant is a fraternal benefit association with a lodge system, etc.; that, by a provision in the certificate sued on, the articles of incorporation, the constitution, laws, and by-laws of the association, and amendments, together with the application for membership and the certificate, constitute the agreement between he association and the member; and that there was in force at the time of the death of the insured a provision of such constitution, laws, and by-laws that "the association shall not be liable for the payment of double indemnity under any beneficiary certificate providing for double indemnity in case of the death of the member by accident, where it is claimed that the death resulted from accidental drowning, cutting, poisoning, hanging, discharging of firearms or shooting, unless the fact that such drowning, cutting, poisoning, hanging, discharging of firearms or shooting was accidental shall be established by the testimony of at least one person other than the member who was an eye witness to such drowning, cutting, poisoning, hanging, discharging of firearms or shooting." It is averred that plaintiff is not entitled to recover for the double indemnity benefit for that the certificate holder came to his death from pistol or gunshot wounds, and there was no eyewitness to the killing of the certificate holder other than Mary M. Gunn, the beneficiary in said policy.

Plea 8 sets up that provision of the constitution, laws, and by-laws of the association, in force at the time of the death of the certificate holder, by which, for the enumerated causes, the certificate shall become null and void, one of which is: "If the member holding the certificate *** should die *** by the hands of the beneficiary or beneficiaries, or any of them, whether sane or insane, except by accident on the part of the beneficiary; or from wounds intentionally inflicted by the beneficiary or beneficiaries, or any of them." It is averred that the beneficiary named in the certificate of insurance here sued on, viz., Mary M. Gunn, who is the same person that assigned said benefit certificate to the plaintiff in this case, was indicted by the grand jury of Talladega county, Ala., at the January term, 1930, for the unlawful and malicious killing of Willie C. Gunn, the insured named in said benefit certificate, and reproduces the said indictment. It is further averred that, subsequent to the finding of said indictment, the beneficiary, Mary M. Gunn, was tried and convicted for the unlawful killing of her husband, Willie C. Gunn, the certificate holder in this case, and was sentenced by the circuit court of Talladega county, Ala., to serve twenty years in the state penitentiary. The verdict of conviction by the jury and the judgment and sentence of the circuit court are reproduced in hæc verba in the plea. The plea concludes: "Now, the defendant further avers that the verdict of conviction by the jury and the judgment and sentence of the court against the said Mary M. Gunn in Talladega County, Alabama, has not been set aside or reversed. Defendant further avers that the beneficiary named in said certificate of insurance, Mary M. Gunn, is one and the same person as Maud M. Gunn, alias Maude M. Gunn, whose name is set out in the indictment and record of verdict, judgment and conviction fully set out in this plea. Wherefore, the defendant says the plaintiff is not entitled to recover in this cause."

Charge 7, refused to defendant, is as follows: "I charge you that you must find for the defendant under its plea 1."

Refused charges 8 to 14, inclusive, are the same as charge 7, referring respectively to pleas 2 to 8, inclusive.

Refused charges 25 and 26 sought to instruct the jury that they could not find a verdict for plaintiff in excess of $1,000, with interest.

Refused charge 27 is as follows: "The court charges the jury that if you are reasonably satisfied from all of the evidence in this case that Mary M. Gunn, the beneficiary in the certificate of insurance sued on, was convicted in the Circuit Court of Talladega County, Alabama, for the unlawful killing of the insured, Willie C. Gunn, then you cannot find for the plaintiff in this case."

On cross-examination the witness Mary Maude Gunn testified that she and her husband were held up and robbed, and her husband murdered by the robbers, while they were traveling in their automobile from Oxford to Jacksonville; that the robbers demanded that they give them their money, and that witness handed them her purse; that "the purse had a one dollar bill and some change and a five dollar bill and a powder puff. I didn't have any $200.00 in the purse." At this point defendant's counsel asked the witness, "Did you tell anyone that you had two hundred dollars in this purse?" Plaintiff's objection to this question was sustained, and defendant reserved an exception.

McCollough & McCollough and Jim Gibson, all of Birmingham, for appellant.

L. H. Ellis, of Columbiana, and Borden Burr, of Birmingham, for appellee.

KNIGHT J.

Suit by Katherine R. Gunn against Sovereign Camp Woodmen of the World, to recover on a policy or certificate of insurance whereby the defendant (appellant) insured the life of Willie C. Gunn, payable upon satisfactory proof of the death of said Willie C. Gunn, and while he was a member in good standing of the association. Mary M. Gunn, the wife, was named as the beneficiary under the certificate; but after the death of the insured this certificate was transferred and assigned to the plaintiff, and she brought this suit thereon.

The first two counts of the complaint are in Code form (1...