Sovereign Camp, W.O.W., v. Gay

• Decision Date: 13 October 1927
• Docket Number: 7 Div. 642
• Citation: 217 Ala. 543,117 So. 78
• Parties: SOVEREIGN CAMP, W.O.W., v. GAY.
• Court: Alabama Supreme Court

117 So. 78

217 Ala. 543

SOVEREIGN CAMP, W.O.W., v. GAY.

7 Div. 642

Supreme Court of Alabama

October 13, 1927

Rehearing Denied May 17, 1928

Appeal from Circuit Court, Etowah County; O.A. Steele, Judge.

Action on a certificate of insurance by George E. Gay against the Sovereign Camp of the Woodmen of the World. From a judgment for plaintiff, defendant appeals. Affirmed.

C.H Roquemore, of Montgomery, for appellant.

Goodhue & Lusk and Alto V. Lee, all of Gadsden, for appellee.

BROWN J.

This case as presented on former appeal is reported in Sovereign Camp W.O.W. v. Gay, 207 Ala. 610, 93 So 559. On that appeal a judgment in favor of the plaintiff was reversed because of the refusal of the trial court to give the affirmative charge for the defendant. It then appearing from the undisputed evidence that the insured, by his failure to pay the assessment due for the month of May, 1918, within the time required by the by-laws of the association, stood suspended, and having failed to comply with the conditions provided in the by-laws for his reinstatement, the certificate of insurance was void. After the remandment of the case and during the progress of the trial resulting in the judgment from which this appeal was taken, the plaintiff amended his complaint and offered some evidence tending to show that the dues for the month of May, 1918, were paid to the clerk of the local camp prior to the 10th day of June and in these respects the case as now presented is different from that presented on the former appeal.

The rulings of the court in allowing the plaintiff to file additional counts as an amendment to his complaint, and in overruling the defendant's general objections thereto, were well within the letter and spirit of the statute, Code of 1923, § 9513; and the defendant's motion to postpone or continue the case was addressed to the sound discretion of the trial court. Alabama Great Southern Ry. Co. v. Hill, 93 Ala. 514, 9 So. 722, 30 Am.St.Rep. 65.

Count 5 of the complaint, added by amendment, avers that the insured died "as a member in good standing of said defendant society," and is not subject to the objection now urged against it.

It was not essential to the statement of a cause of action that the complaint aver that "the premiums, dues and assessments were paid as and when due." A fortiori, though the premiums, dues, and assessments were not paid "as and when due." Yet, if they were paid as averred in the several counts, and the insured was a member in good standing at the time of his death, a prima facie case of liability is shown. Sovereign Camp W.O.W. v. Burrell, 204 Ala. 210, 85 So. 762.

The appellant's contention that this case was pending on appeal to the Court of Appeals when the trial was entered upon--October 8th, 1925--is not sustained by the record, and the contrary appears from the records of this court and that of the Court of Appeals. Ex parte Gay, re Sovereign Camp W.O.W. v. Gay, 213 Ala. 5, 104 So. 898; Ex parte Sovereign Camp W.O.W., re Sovereign Camp W.O.W. v. Gay, 20 Ala.App. 531, 104 So. 899; Ex parte Gay, 213 Ala. 411, 104 So. 900.

After the issuance of the rule nisi by the Court of Appeals in the mandamus proceeding to compel a vacation of the judgment nil dicit, theretofore entered by the circuit court, and the denial of review here by certiorari, it was proper for the circuit court to act in accordance with the mandate of the alternative writ issued from the Court of Appeals and vacate the judgment without awaiting final disposition of the mandamus case, and proceed with the trial, and in the absence of an affirmative showing in the record to the contrary it will be assumed that this orderly course of procedure was followed.

There is nothing in the opinion of this court on the former appeal that can be construed as holding that the admission against interest in its official magazine, The Sovereign Visitor, was not admissible in evidence. What was there held is that such admission, in the absence of knowledge on the part of the home officers, under whose supervision this paper is published, that a forfeiture had resulted from Gay's failure to pay his dues as required by the by-laws of the society, that the admission did not constitute a waiver of the forfeiture. Sovereign Camp W.O.W. v. Gay, 207 Ala. 610, 93 So. 559.

The amount of damages claimed in the several counts of the complaint are not descriptive of the certificate of insurance, and even if they were, the certificate on its face insured the life of Margie Gay in the sum of $1,000 in the event of his death while in good standing after the second year, and the objection on the ground of a variance between the averments and proof was properly overruled. 22 Enc.Pl. & Pr. 537 (c).

Before the question, made the basis of assignment of error 16, was put to the witness, he had testified, without objection to the same fact elicited by the question, and if it should be conceded that the court erred in overruling defendant's objections, it was clearly without injury. Carter v. Tenn.C.I. & R.R. Co., 180 Ala. 367, 61 So. 65.

Coming to the questions presented by the exceptions to the oral charge of the court, we find that the bill of exceptions recites that "the court, in its oral charge, charged the jury as follows," setting out the excerpt, followed by the statement: "To this part of the charge the defendant duly and legally excepted."

In City Council of Montgomery v. Gilmer, 33 Ala. 116, 70 Am.Dec. 562, this court adopted the rule of the cases holding that exceptions to the charge of the court to the jury must be taken before the jury leaves the bar, because, in the language of the opinion in that case:

"It is supported by respectable authorities, has been for a long time universally recognized in practice in this state, and seems to rest upon a good reason. The reason is, that the court may have, at the time of giving the charge, an opportunity 'for reconsidering and explaining it more fully to the jury.' "

Since that time this rule has been consistently followed, with one exception--Meadows v. State, 182 Ala. 51, 62 So. 737, Ann.Cas.1915D, 663. See Reynolds v. State, 68 Ala. 507; Hayes v. Soloman, 90 Ala. 520, 7 So. 921; Carter v. T.C., I. & R.R.Co., 180 Ala. 367, 61 So. 65; Oil Well Supply Co. v. West Huntsville C.M. Co., 198 Ala. 501, 73 So. 899; Southern Ry. Co. v. Clarke et al., 203 Ala. 248, 82 So. 516.

In two of our decisions it is stated that this fact must "affirmatively appear." Carter v. T.C., I. & R.R.Co., supra; Oil Well Supply Co. v. West Huntsville C.M. Co., supra. By reference to the records in these cases, we find that in Carter's Case the recital in the bill of exceptions was that "the defendant excepted to the following portion of the court's oral charge to the jury," setting out the excerpt in question. While in the Oil Well Supply Company Case there was no recital of exception to the charge of the court in the bill of exceptions, but noted at the foot of the charge, as set out in the record, presumably by the circuit court reporter, "The plaintiff excepted to that part of the oral charge which says there was no evidence to support the first count of the complaint." And, applying the rule that the recitals of the bill of exceptions will be considered more strongly against the appellant, it was in effect held that the quoted recitals did not show that the exceptions were timely; i.e., taken before the jury left the bar. Moore v. State, 40 So. 345; ^[1] Massey v. Smith, 73 Ala. 173. And in fact no exception was shown in the Oil Well Supply Company Case.

While no doubt, it is the better practice for the bill of exceptions to affirmatively recite that the exception was taken during the trial and before the jury left the bar to consider their verdict, we are of opinion that the expression in the two cases that this fact must "affirmatively appear" is misleading in tendency, and that the recital that the party "duly and legally excepted," coming to us as it does, with the approval of the trial judge, affirmatively shows a timely exception. 19 C.J. 833, § 44; 36 C.J. 983, "Legally"...