Sovereign Camp, W.O.W. v. Harris

• Decision Date: 29 March 1934
• Docket Number: 7 Div. 196.
• Citation: 228 Ala. 417,153 So. 870
• Parties: SOVEREIGN CAMP, W. O. W., v. HARRIS.
• Court: Alabama Supreme Court

153 So. 870

228 Ala. 417

SOVEREIGN CAMP, W. O. W., v. HARRIS.

7 Div. 196.

Supreme Court of Alabama

March 29, 1934

Appeal from De Kalb County Court; L. L. Crawford, Judge.

Action on a policy of life insurance by Laura J. Harris against the Sovereign Camp of the Woodmen of the World. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Wm. B McCollough, of Birmingham, for appellant.

J. A Johnson, of Fort Payne, for appellee.

FOSTER Justice.

This case was tried on counts 1, A, and B. They are substantially the same as form 12 of the Code (section 9531), except B has the additional averment that insured died during the life of the policy. They are therefore not subject to demurrer.

Plaintiff relied upon a benefit certificate for the members of a fraternal society or association in good standing.

Form 12, prior to the Code of 1923, was held not to be sufficient for such a contract, but was changed in some respects as it now appears, and in such condition it has been held to be sufficient. Sov. Camp, W. O. W., v. Gunn, 224 Ala 444, 140 So. 410; Commercial Casualty Ins. Co. v. Hubert, 226 Ala. 357, 147 So. 134; Am. Bankers Ins. Co. v. Dean, 227 Ala. 387, 150 So. 333.

The special pleas alleged facts which show and they alleged, that deceased, whom we will call insured, had been suspended prior to his death for nonpayment of dues. They respectively alleged that the suspension occurred on November 1, 1931, December 1, 1931, January 1, 1932, February 1, 1932, and March 1, 1932. Insured is alleged to have died March 27, 1932. The general issue and special replications were filed by plaintiff.

We may here pause to say that the proof, without conflict, established those pleas.

The special replications 3 and 4 were withdrawn. Nos. 5 and 6 relied upon a compliance with rule 65 in which they alleged that provision was made for reinstatement of a member suspended for nonpayment of dues. That rule applied only when the effort to reinstate was made within three months after suspension. The substance of the rule 65, here material, is that in that time he must pay the current installment for the month and all arrearages; that he must then be in good health and so remain for thirty days; that such payment shall be held to warrant his present good health, and that he will so remain for thirty days; and the replication then alleged that defendant is estopped to claim that insured stood suspended at the time of his death, because in January, 1932 (which is within three months after his suspension on November 1, 1931), while he was in good health, he paid to defendant association $16.94, to cover all arrearages, and for the current month, "and for his assessments in the future," but that defendant refused to accept same; and that insured remained in good health thirty days. Replication No. 6 alleged that the amount included dues "for such period in the future as such sum would pay," and that payment was made or offered to the clerk of the local lodge. Replication No. 7 also set up an estoppel, but based it on the averment that in September, 1931, when he paid his dues for that month, he offered, tendered, and tried to pay to the local camp clerk dues for one year in advance, but that the clerk refused to accept such payment.

Those replications are not subject to the contention appellant makes on this appeal.

They do not merely supplement a defective complaint. They allege matter proper to be pleaded specially by way of replication. Those numbered 5 and 6 seek to show that, though insured was suspended for nonpayment of dues, as alleged in the pleas, he was effectually reinstated. They do not expressly confess the pleas, but do not deny them, nor allege matter inconsistent with them. No. 7 may be treated as in the nature of an excuse for not paying the dues for which he was suspended. Special replications need not expressly confess the pleas, if they allege matter consistent with them and do not expressly deny any material feature of the pleas. Fidelity-Phenix Fire Ins. Co. v. Murphy, 226 Ala. 226, 146 So. 387; Bryan v. Day, 225 Ala. 687, 145 So. 150.

To the special replications, defendant made special rejoinder only, not pleading the general issue to them. For special rejoinder No. 1, defendant set out further provisions of the contract, to the effect that, if a member who has been suspended more than three months and less than six months, he must not only in fact be in good health, but must present a certificate of good health from the camp physician, and be balloted for, and must receive a majority vote, and pay four monthly installments of assessments and dues to the clerk of the camp; and he shall also sign a certificate of good health and deliver it to the financial secretary, and pay all arrearages and the current installment, and shall remain in good health for thirty days. And defendant then alleged that the insured was suspended November 1, 1931, for nonpayment of the October installment, and remained suspended for more than three months, and until he died March 27, 1932, and did not present a health certificate from the camp physician, was not balloted on by the members of the local lodge, was not in good health so as to be able to present a health certificate after November 1st to the date of his death.

Rejoinder 2 alleged that insured did not after suspension try or attempt to reinstate his certificate before his death in March, 1932, that no health certificate was presented, and he was not balloted on.

Rejoinder 3 sets up the provision prohibiting any officer from waiving any of the conditions of the contract, and averring that insured became suspended for nonpayment of the October installment, and remained suspended until his death, and the camp clerk had no authority to bind or estop defendant from setting up the suspension, unless the installments were paid or offered during the time prescribed.

Rejoinder 4 sets up a provision of the contract, which provided in effect that after ten days, and within three months from suspension, in order to reinstate, he must pay to the clerk of his camp all arrearages and dues and deliver to him a written statement of good health, etc., and shall continue in good health for thirty days thereafter. And defendant alleged that insured became suspended November 1, 1931, and did not after ten days and within three months pay all dues and arrearages, and did not tender a written statement that he was in good health. There was no demurrer to rejoinders.

For rebutter, plaintiff pleaded (1) that the rejoinders are not an answer to the replications, because they refer to a member who has been suspended for more than three, and less than six, months. Rebutter 2 simply alleged that section 65 of its rules and regulations was adopted after the making of the agreement sued on, and which contained certain provisions there copied, as being set out in the rejoinders.

Demurrer to rebutters 1 and 2 were overruled.

It is quite apparent that rebutter No. 1 presents no issue of fact. It is more in the nature of a demurrer, and undertakes to point out a reason why the rejoinders are not legally sufficient, since the replications alleged an effort to reinstate within three months, and the rejoinders, except No. 4, set up requirements applicable to an effort made after three months.

Rejoinders 1, 2, and 3 set up matter inconsistent with replications 5 and 6. The rejoinders were not true, if those replications were true. They were not therefore properly in confession and avoidance. Fidelity-Phenix Fire Ins. Co. v. Murphy, supra.

Benefit of those facts was available under the general issue which was not pleaded. But, if defendant wished to assume the burden of proving the matter of those rejoinders, rather than merely to require plaintiff to prove replications 5 and 6, that was his privilege.

But plaintiff did not take issue on those rejoinders. He pleaded specially by way of rebutter, but not the general issue. That relieved the defendant of proving the matters set up in the rejoinders, and put the burden on plaintiff to prove the rebutters or one of them. But defendant demurred to the rebutters before issue was joined.

As we have said, rebutter No. 1 was of no avail as such for any purpose. But No. 2 was substantive, but has application to rejoinder No. 4 only. That rejoinder sets up further provisions affecting reinstatement within three months, which required that, on reinstatement, insured must furnish a certificate of good health. Replications 5 and 6 had set up rule 65, which did not require such certificate, but did not expressly exempt it. The two rules could not operate, unless one amended the other. The effect of rebutter No. 2 should probably be construed as to show that rule 65 amended the provision set up in rejoinder No. 4. If so, rejoinder No. 4 would not show requirements not observed in the effort...