Sovereign Camp, W.O.W. v. Reed

• Decision Date: 16 November 1922
• Docket Number: 7 Div. 240.
• Parties: SOVEREIGN CAMP, W. O. W., v. REED.
• Court: Alabama Supreme Court

94 So. 910

208 Ala. 457

SOVEREIGN CAMP, W. O. W., v. REED.

7 Div. 240.

Supreme Court of Alabama

November 16, 1922

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

Action by Rena Reed against the Sovereign Camp of the Woodmen of the World. Judgment for plaintiff, and defendant appeals. Reversed and remanded conditionally.

Counts 4 and 5, upon which the case was tried, are as follows:

"Count 4. The plaintiff, Rena Reed, a minor who sues by her next friend, Della Canada, claims of the defendant corporation the further and other sum of $1,000 due on a policy whereby the defendant on the 31st day of December, 1919, insured for the term of his life, the life of Forney T. Reed, who died on the 24th or 25th day of February, 1920, of which defendant has had notice, and said policy is the property of the plaintiff; and plaintiff also claims of the said defendant interest on the said sum of $1,000 at the rate of 8 per cent. per annum, from the 11th day of May, 1920, when the said sum of $1,000 became due and payable under the terms of said policy.

"Count 5. The plaintiff, Rena Reed, a minor, who sues by her next friend, Della Canada, claims of the defendant corporation the further and other sum of $1,000 due on a certificate of insurance issued by the defendant to Forney Reed on, to wit, the 31st day of December, 1919, in and by the terms of which the defendant agreed to pay to the plaintiff, who was the wife of the said Forney Reed, the sum of $1,000, upon his death, and plaintiff avers that the said Forney Reed died on, to wit, the 24th or 25th day of February, 1920; that the defendant has had notice of his death, and that said certificate of insurance is the property of the plaintiff; and plaintiff also claims of the said defendant interest on the said sum of $1,000 at the rate of 8 per cent. per annum, from the 11th day of May, 1920, when the said sum of $1,000 became due and payable under the terms of said policy."

To these counts the defendant interposed the following grounds of demurrer, originally interposed to counts 1, 2, and 3:

"(1) Plaintiff fails to set out the agreement which she alleges was contained in the policy of life insurance.

"(2) Because the allegation of the agreement contained in the policy of life insurance is a conclusion of the pleader and the agreement is not set out.

"(3) Because the agreement alleged to be contained in said policy is not set out in the complaint.

"(4) For aught that appears in said complaint, there are other provisions in the policy of life insurance which preclude the plaintiff from any claim thereunder.

"(5) Plaintiff fails to show that the policy of life insurance was in force and effect at the date of the death of said Forney Reed.

"(6) It does not appear by the amendment that the suit is by Della Canada as the next friend of Rena Reed."

Plea 2, as originally filed, read:

"The instrument sued on contains the following condition or provisions:

"'All premiums are payable at the home office of this society but may be paid to the authorized representative of the society, such payments to be recognized by the society must be entered at the time of payment in the premium receipt book belonging with this certificate. If for any reason the premium be not called for when due by the authorized representative of the society, it shall be the duty of the member before said premium shall be in arrears thirty days to bring or send said premium to the home office of the society or to one of its local representatives. If the premiums are not paid as herein specified, this contract shall become null and void.'

"Defendant alleges that the said Forney T. Reed paid the premium for December, 1919, which payment was due and promptly entered in the receipt book belonging with said certificate, but that no other payments were made by said Forney T. Reed during his lifetime, wherefore said policy or certificate became null and void."

The following amendment to the plea was filed April 8, 1921:

"Comes defendant and amends plea No. 2 by inserting therein at the beginning the following:

"The instrument sued on also contains the following condition or provision: 'Schedule herein referred to certificate No. 119411 Camp No. 55; name of member, Forney T. Reed; age next birthday, 23 years; monthly premium, $1.60; death benefit, $1,000.00; accidental death benefit, $2,000.00; beneficiary, Rena Reed. This certificate is granted in consideration of the monthly premium stated in the schedule and the payment of a like amount on or before the first day of each consecutive month thereafter during the continuance of this contract, and the further consideration of the delivery of this certificate during the lifetime and good health of the member."'

The minute entry of April 8, 1921, among other things, recites that-

"*** Thereupon the plaintiff demurs to defendant's plea 2 as answer to counts 4 and 5 of said complaint upon the grounds specifically set forth in said demurrers, and upon due consideration it is ordered and adjudged by the court that said demurrers to plea 2 as answer to counts 4 and 5 of said complaint be and the same is hereby sustained."

The defendant objected to the following portions of the oral charge of the court:

"When the plaintiff introduced the policy in this case, and made proof of the death of the insured if nothing more had happened, plaintiff at that point would have been entitled to a judgment for the amount of the policy with interest on the same."

"In case you find for the plaintiff, the form of your verdict is: 'We, the jury, find the issue in favor of the plaintiff, and assess her damages at so much, which would be the amount of the policy, $1,000, and interest on it from the 11th day of May, 1921, up to the date of the trial, at 8 per cent."'

"These written charges I am giving and refusing are intended to instruct you that this policy, though dated December 15, 1919, was not delivered until December 31, 1919, and did not take effect until delivered on the 31st of December, 1919."

The following charges requested by the defendant were refused by the trial court:

"(1) The court charges the jury that if they believe the evidence they must find a verdict for the defendant.

"(2) The court charges the jury that if you believe the evidence you cannot find a verdict for the plaintiff under the fourth count of the complaint.

"(3) The court charges the jury that if you believe the evidence you cannot find a verdict for plaintiff under the fifth count of the complaint.

"(4) The court charges the jury that Forney T. Reed is presumed to know the provisions of defendant's constitution and that his failure to pay the installment of assessment for the month of January, 1920, would mark a forfeiture of the policy or certificate.

"(5) The court charges the jury that under the entire contract Forney T. Reed should have paid an installment of assessment for the month of January, 1920, during January, and if you believe from the evidence that he failed to pay said installment during January, 1920, he stood suspended, and plaintiff cannot recover in this suit, and your verdict must be for the defendant."

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

Goodhue & Goodhue, of Gadsden, for appellee.

THOMAS J.

The trial and verdict rendered were on counts 4 and 5, added by way of amendment, plea of the general issue, special plea 2 as amended and as answer to said counts. Counts 2 and 3 were eliminated by the general affirmative charge requested in writing by the defendant.

Count 4 was not subject to the grounds of demurrer assigned. Eminent Household, etc., v. Gallant, 194 Ala. 680, 69 So. 884. Count 5 was likewise free from demurrer assigned. Sovereign Camp v. Ward, 196 Ala. 327, 330, 71 So. 404. These counts, added by way of amendment to the complaint, were by a minor suing by a next friend, and were in form required by law of such suits. Smith v. Yearwood, 197 Ala. 680, 73 So. 384; Robinson Lumber Co. v. Sager, 199 Ala. 675, 75 So. 309; Alabama Power Co. v. Hamilton, 201 Ala. 62, 66, 77 So. 356; Wynn v. Hoffman, 203 Ala. 72, 73, 82 So. 32.

There was no prejudicial error in ruling on pleadings as shown by the judgment entry. We cannot consider the ruling as on demurrer to plea 2 as amended, as an answer to counts 4 and 5 added to the complaint by way of amendments. In the contract are employed the words, referring to the payment of premiums, "monthly installment," "following month," and "monthly payment"; the word "month," as so used in the beneficiary certificate and exhibits thereto or documents incorporated therein by agreement of the parties, had reference to a calendar month. This is the usual acceptation of the word "month," unless it appears in the context to have been intended otherwise. Bartol v. Calvert, 21 Ala. 42, 46; Doyle v. First National Bank, 131 Ala. 294, 30 So. 880, 90 Am. St. Rep. 41; Oberhaus v. State ex rel. McNamara, 173 Ala. 483, 55 So. 898; Sheets v. Seldon, 2 Wall. 177, 17 L.Ed. 823; Guaranty Trust, etc., Co. v. Green Cove etc., Co., 139 U.S. 137, 11 S.Ct. 512, 35 L.Ed. 116, 119; McGinn v. State, 46 Neb. 427, 65 N.W. 46, notes to 30 L. R. A. 450, and 50 Am. St. Rep. 617; Daley v. Anderson, 7 Wyo 1, 48 P. 839, note to 75 Am. St. Rep. 870; Guaranty Trust, etc., Co. v. Buddington, 27 Fla. 215, 9 So. 246, 12 L. R. A. 770 note; 3 R. C. L. p. 1214; 26 R. C. L. p. 732, 38 Cyc. 311.

A general rule of construction of beneficiary certificates and policies of insurance, when subject to two or more constructions, in the same will be taken most strongly against the assurer and in favor of the assured. Such is the construction that is given to ambiguous terms in constitutions, laws, and by-laws of a mutual benefit...