Sovereign Camp, W.O.W. v. Adams

• Decision Date: 14 October 1920
• Docket Number: 7 Div. 35
• Citation: 204 Ala. 667,86 So. 737
• Parties: SOVEREIGN CAMP, W.O.W., v. ADAMS.
• Court: Alabama Supreme Court

86 So. 737

204 Ala. 667

SOVEREIGN CAMP, W.O.W., v. ADAMS.

7 Div. 35

Supreme Court of Alabama

October 14, 1920

Rehearing Denied Nov. 18, 1920

Appeal from Circuit Court, Talladega County; A.B. Foster, Judge.

Action by Maude E. Adams against the Sovereign Camp, Woodmen of the World, on a beneficiary life certificate, issued upon the life of Robert Lee Adams. Judgment for plaintiff, and defendant appeals. Affirmed.

Contract of insurance is to be strictly construed against the insurer and liberally construed in favor of the insured, especially with respect to forfeitures.

Amended counts A and B allege that the defendant executed a written policy of life insurance on the 20th day of July, 1909, on the life of Robert Lee Adams, payable to this plaintiff as provided by the said terms of said policy in the event of the death of said Robert Lee Adams in the sum of $2,000, a substantial copy of which said insurance policy with the indorsements thereon is hereto attached, marked "Exhibit A," and made a part hereof, as is written herein. Plaintiff avers that on or about the 12th day of February 1916, the said Robert Lee Adams died; and plaintiff avers that said Robert Lee Adams was in good standing in said order at the time of his death, that said policy was in full force and effect, and plaintiff avers that the defendant had been given notice and proof of the death of said Robert Lee Adams and has failed to pay said policy or any part of the same. Count B adds a claim for the additional sum of $100 for a monument under the terms of said policy. The certificate attached and marked "Exhibit A" was an exact copy of the policy. Plea C sets up the constitution and laws of the order, especially sections 109, 115, 119, and alleged a failure of Robert Lee Adams to pay his dues and assessments for the month of January, 1916.

"Section 109: 'Every member of this society shall pay to the clerk of his camp one annual assessment, or one monthly installment of such assessment, which shall be credited and known as the Sovereign Camp fund, and he shall also pay such camp dues as may be required by the by-laws of his camp. He shall pay an additional Sovereign Camp fund and camp dues, or either, which may be legally called. If he fails to make any such payments on or before the 1st day of month following, he shall stand suspended, and during such suspension his beneficiary certificate shall be void.'

"That section 119 of such constitution and laws is as follows: Section 119: 'A member suspended for nonpayment of assessments, or dues, is not entitled to any benefits of this society. He shall not be entitled to receive the passwords, nor to participate in any of the business or social proceedings of his camp. He may be admitted at a meeting only to pay his arrearages, and must retire if he fails to do so.'

"That section 115 of the constitution and laws of defendant order provides as follows 'Should a suspended member pay all arrearages and dues to the clerk of his camp within ten days from the date of his suspension, and if in good health, and not addicted to the excessive use of intoxicants or narcotics, he shall be restored to membership, and his beneficiary certificate again become valid. After 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. 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 be untrue, then said payments shall not cause his reinstatement, nor operate as a waiver of the above condition.' "

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

Riddle & Riddle, of Talladega, for appellee.

This appeal was submitted under rule 46 (178 Ala. xix, 65 South. vii) Supreme Court Practice, and the opinion of the court delivered by Mr. Justice THOMAS:

The former appeal is reported in 201 Ala. 166, 77 So. 692. On the second trial the complaint was amended by the addition of counts A and B, to which demurrers were overruled.

Appellee insists that the ruling on demurrer be not considered. The demurrer was to "counts A and B separately and severally as amended." The judgment entry recited that--

"By leave of court first had and obtained plaintiff amends her complaint by filing an amended complaint, consisting of counts A and B. *** Thereupon the defendant files demurrers to said complaint as last amended, *** and this cause being submitted to the court on demurrers to plaintiff's complaint as last amended, and said demurrers being heard, *** it is thereupon considered, ordered, and adjudged by the court that said demurrers be and the same are hereby overruled."

This ruling was not to the complaint as a whole, but was on the several demurrers directed "separately and severally" to the respective counts (A and B) added by way of amendment.

In these counts the ownership of the policy sued on is sufficiently averred as "payable to this plaintiff as provided by the terms of said policy in the event of the death of the" assured. This was to aver the prima facie ownership in plaintiff when the instant suit was sought to be maintained. Code, § 5382, form 12. See analogous rulings in W.O.W. v. Ward, 196 Ala. 327, 330, 71 So. 404; Pacific Mut. L.I. Co. v. Hayes, 200 Ala. 246, 76 So. 12; Prudential Cas. Co. v. Kerr, 202 Ala. 259, 80 So. 97; Travelers' Ins. Co. v. Whitman, 202 Ala. 388, 80 So. 470. The case of Life Ins. Co. v. Bledsoe, 52 Ala. 538, was under the Revised Code of 1867, §§ 2629, 2630, where no specific form was provided for such action, yet the complaint, which was insufficient at common law, was sustained as a substantial conformity to the analogous forms prescribed by the Code. However, that decision has not the effect of relieving plaintiffs of the burden of averring and proving ownership in policies on which a suit is rested under the form now provided. Code, § 5382, form 12; Adler & Co. v. Pruitt, 169 Ala. 213, 53 So. 315, 32 L.R.A. (N.S.) 889. See, also, Norwich Union F.I.S. v. Prude, 145 Ala. 297, 40 So. 322, 8 Ann.Cas. 121; Prine v. Am. Cent. Ins. Co., 171 Ala. 343, 54 So. 547; Feibelman v. Manchester F.A. Co., 108 Ala. 180, 19 So. 540; 14 R.C.L. p. 1430, § 590.

The ground of demurrer that plaintiff's several counts fail to aver that assured had complied with the conditions of the policy sued on is not well taken. The contract relation of the parties to the policy of insurance, and all of its material provisions, are averred in substance. In count A is the averment that said Robert Lee Adams was in good standing in said order at the time of his death, and said policy was in full force and effect at the time of his death. In count B it is further averred that defendant has failed to pay any part of said policy; and that plaintiff has complied with all the conditions of said policy developing on her as the beneficiary therein, and that the said Robert Lee Adams complied with all the conditions of said policy required of him as the assured, and that the defendant has wholly failed to comply with the terms and conditions of the policy as to payment of respective amounts due thereon.

The objection to the counts that it is insufficiently averred that the policy made a part of the several counts was but a substantial copy thereof, and "fails to show that the copy [so exhibited] is a true and correct copy of the policy sued on." The several counts added by way of amendment only purported to exhibit as a basis of the suit a "substantial copy" of said insurance policy, with the indorsements thereon, and this may be done under the rule of pleading obtaining in this state. Pike County v. Hanchey, 119 Ala. 36, 39, 24 So. 751; B.R., L. & P. Co. v. Littleton, 201 Ala. 141, 145, 77 So. 565; Will's Gould, Pl. pp. 71(A), 198, 360, 364. The substance of the policy and the several indorsements thereon are averred in the respective counts, by the substantial copy exhibited, and it will be held a sufficient averment of all its material and essential parts of the policy as affecting liability, and the extent thereof, without qualification in any respects material to the risk. Such has been the holding in other jurisdictions of the meaning of the phrases "substantial copy," and "substantially true," etc. Thomas v. State, 103 Ind. 419, 426, 2 N.E. 808; Jeffrey v. United Order Golden Cross, 97 Me. 176, 53 A. 1102; France v. AEtna L.I. Co., 9 Fed.Cas. 657; Adams v. Edwards, 1 Fed.Cas. 112, 114.

The judgment entry recites that plaintiff's demurrers to pleas 1, 2, 7, 9, A, B, and C were overruled, and demurrers to pleas 3, 4, 5, 6, 8, 10, 11, 12, and D were sustained. The assignment of error seeking to challenge the rulings sustaining demurrers to said several pleas was joint therefore, to avail defendant, there must be an erroneous ruling in sustaining demurrers to each of said pleas; and if one of said pleas was subject to the demurrer interposed, the assignment of error will not avail. In several of the pleas there is not set out the condition and agreement of the policy to which plaintiff's intestate is averred to have failed of compliance and which rendered the policy null and void. The plea should not have drawn this conclusion from the appropriate conditions or agreements contained in the policy, but should have averred the condition or agreement from which the default followed...