Sovereign Camp, W.O.W., v. Ballard

• Decision Date: 08 May 1923
• Docket Number: 3 Div. 420.
• Citation: 97 So. 895,19 Ala.App. 411
• Parties: SOVEREIGN CAMP, W. O. W., v. BALLARD.
• Court: Alabama Court of Appeals

97 So. 895

19 Ala.App. 411

SOVEREIGN CAMP, W. O. W., v. BALLARD.

3 Div. 420.

Court of Appeals of Alabama

May 8, 1923

Rehearing Denied Oct. 16, 1923.

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

Action on policy of insurance by Mrs. J. R. Ballard against the Sovereign Camp of the Woodmen of the World. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Certiorari denied by Supreme Court in Ex parte Ballard, 97 So. 901.

C. H Roquemore, of Montgomery, for appellant.

Powell & Hamilton, of Greenville, for appellee.

SAMFORD J.

Defendant is a fraternal order, issuing to its members certificates or policies insuring their lives against death, etc., in accordance with the terms of the certificates, which embrace the constitution and by-laws of the organization. Plaintiff is the beneficiary named in the certificate issued to her son, who was a member of the order, at Plant City, in the state of Florida, and to him, through the local camp at Plant City, Fla., was issued the certificate sued on in this case. One of the vital conditions named in the certificate was:

"This certificate is issued and accepted subject to all the conditions on the back hereof. The articles of incorporation, and the constitution and laws of the Sovereign Camp of the Woodmen of the World and all amendments to each thereof which may be hereafter made, the application for membership and the medical examination of the member herein named as approved by the Sovereign physician of this society and this certificate shall constitute the agreement between this society and the member, and copies of the same certified by the secretary of the society or corresponding officer shall be received in evidence of the terms and conditions thereof, and any changes, additions or amendments to the articles of incorporation, Constitution or laws duly made or enacted subsequent to the issuance of this benefit certificate shall bind the member named herein and his beneficiaries and shall govern and control the agreement in all respects the same as though such changes, additions or amendments had been made prior to and were in force at the time of the application for membership, also subject to the by-laws of the camp of which he is a member."

This certificate was signed by the officials of the order and accepted in writing by the member, in which he declared as follows:

"I have read the above certificate No. 44573 of the Sovereign Camp of the Woodmen of the World, and the conditions thereon, and hereby agree to and accept the same as a member of camp No. 74, state of Florida, this the 10th day of July, 1917, and warrant that I am in good health at this time, and that all the requirements of section 58 of the Constitution and Laws of the society have been complied with."

Another condition was that he would pay-

"all assessments and dues that are required of him during the time he shall remain a member of this society and to make such payments at such time, in such manner and in such amount as is required by the constitution and laws of this society now in force or which may hereafter be adopted."

By Section 110 of defendant's constitution the member was required to pay certain assessments by the first day of each month succeeding the issue of the certificate, and, failing to make such payment, the member stands suspended, and during such suspension the certificate is void. Section 116 of the constitution provides for reinstatement as follows:

"Section 116. *** (b) After the expiration of ten days and within three months from the date of suspension of a suspended member, to reinstate, he must pay to the clerk of his camp all arrearages and dues, and deliver to him a written statement and warranty signed by himself and witnessed, that he is in good health and not addicted to the excessive use of intoxicants or narcotics, as a condition precedent to reinstatement, and waiving all rights hereto if such written statement and warranty be untrue.

"(c) Any attempted reinstatement shall not be effective for that purpose unless the member be in fact in good health at the time, and if any of the representations or statements made by said applicant are untrue, then said payments shall not cause his reinstatement not [nor] operate as a waiver of the above conditions."

The member complied with all these requirements to and including August 1, 1918. On September 1 and October 1, 1918, he failed to make the required payments. On October 14th, while the member was ill and in a hospital in Montgomery, Ala., his wife wrote a letter to the clerk of the local camp of defendant at Plant City, Fla stating the reason why the assessments had not been paid, and notifying the clerk of the member's then ill health and his confinement in the hospital, whereupon the defendant's local clerk, on October 16th, who was charged with the duty of collecting the assessment, and through whom alone payment was provided, issued to the member receipts for the two assessments, and informing him that he was reinstated and in good standing. On October 17th the member died of the illness of which he was confined in the hospital. The member did not comply with that condition of his certificate providing that, in addition to the payment of arrearages, he shall deliver to him (the local clerk) a written statement and warranty signed by himself and witnessed that he is in good health, and not addicted to the excessive use of intoxicants or narcotics, as a condition precedent to reinstatement. Nor could he comply with section 119 of the order, which provides:

"No suspended member shall be reinstated whose health is at the time impaired,"

it being admitted at this time the member was in the hospital sick of a disease from which he died the next day.

The foregoing facts were sufficiently pleaded in count 2 of the complaint, stating the cause of action, and defendant's pleas 1 to 9, both inclusive. Plaintiff replied to defendant's pleas as follows:

"For further replication plaintiff says that, after the failure of the said Lloyd Ballard to pay said monthly installment of assessments for the month of September, 1918, on or by the 1st day of October thereafter, said installment, together with the installment for October, was paid for said Ballard by W. A. Clark, clerk of the camp of which the said Ballard was a member, said payment being made on, to wit, October 16, 1918. At the time said payment was made the said Clark had information that Ballard was ill and in an infirmary, but said Ballard on said date was reinstated as a member of the camp and of the defendant order without being required to furnish a certificate as to good health; that thereafter, on, to wit, November 5, 1918, said installments of assessments were forwarded to defendant's Sovereign Clerk, and a statement was also furnished to him by the clerk of the local camp showing that Ballard had been reinstated on October 16, 1918; that in the matters herein above set out Clark was the authorized agent of the defendant. Prior to November 5, 1918, the defendant order had been duly notified of the death of the said Ballard by the consul commander, banker and clerk of the local camp of which Ballard was a member. This notice was dated October 24, 1918, and was received by the defendant's Sovereign Clerk, John P. Yates, on, to wit, October 29, 1918, and in it was a statement showing that Ballard had died October 17, 1918; that the cause of his death was pneumonia; that it occurred at Camp Sheridan, in Montgomery, Ala.; that Ballard had been suspended on the 1st day of October, 1918, and reinstated on the 16th day of October, 1918; that, after receiving the information hereinabove set out, the defendant, on or about November 12, 1918, received and accepted the installment assessments of the said Ballard for the months of September and October, 1918, and still retains the same. Wherefore plaintiff avers that the defendant ratified the reinstatement of the said Ballard and waived a compliance with the requirements relied on as a defense in said special pleas, and plaintiff is not precluded from recovering by reason of the defense set up in said pleas.

"For further replication to said special pleas, and separately to each of them, plaintiff adopts all of replication 6 down to and including the words, 'defendant, on or about November 12, 1918, received and accepted the installment assessments of the said Ballard for the months of September and October, 1918,' and adding immediately thereafter the following "That defendant also furnished her with the necessary blanks for the purpose of showing the death of said Ballard, who was her son, and of establishing her claim as beneficiary under the certificate sued on, which said proofs were made out and sent to the defendant, plaintiff being put to time and trouble in doing so, and that the defendant has retained said September and October installments of assessments. Therefore plaintiff avers that defendant waived its right to insist on the defense set up in said pleas, and plaintiff is not precluded thereby from recovering."'

Demurrers were filed to these pleas demurrers were overruled, and rejoinders were then filed, to which demurrers were sustained except as to rejoinder 5. Issue was joined on this this rejoinder along with the general issue, which was interposed at each step of the pleading. The foregoing sufficiently states the facts in the case made by the pleading, except in so far as it may become necessary to allude to the evidence in a further consideration of the various propositions presented in this appeal.

Briefs for appellant were filed on the submission, which, while not strictly complying with Supreme Court rule 10 (175 Ala. xviii, 61 South. vii), will be...