Supreme Lodge Knights and Ladies of Honor v. Baker

• Decision Date: 16 December 1909
• Citation: 163 Ala. 518,50 So. 958
• Parties: SUPREME LODGE KNIGHTS AND LADIES OF HONOR v. BAKER.
• Court: Alabama Supreme Court

50 So. 958

163 Ala. 518

SUPREME LODGE KNIGHTS AND LADIES OF HONOR v. BAKER.

Supreme Court of Alabama

December 16, 1909

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action on an insurance policy by Mims R. Baker against the Supreme Lodge Knights and Ladies of Honor. Judgment for plaintiff and defendant appeals. Affirmed.

There was the following entry in response to the summons: "I enter this my appearance for the defendant, and reserve the right to plead specially to the complaint filed against it in this cause. B. B. Boone, Attorney for Defendant."

The following special pleas appear: (1) "And for further special plea in this behalf defendant avers that said policy of insurance or relief fund certificate on the life of Alexander Price Baker, in which plaintiff was named as beneficiary thereunder, and which is the foundation of this suit, was issued upon the following express and written conditions, viz.: 'That the statements made by said Alexander Price Baker in the contract, known as application for membership in relief fund, and the answers to questions in said Alexander Price Baker's statement to the medical examiner, known as the medical examiner's certificate were to be treated as warranties.' And defendant says that to the question in said medical examiner's certificate propounded to said Alexander Price Baker, viz 'Do you use alcoholic or other stimulants?' said Alexander Price Baker answered, 'No,' which answer defendant avers is untrue in this: That said Alexander Price Baker did at the date of making said answer, to wit, August 25, 1905, and previous thereto, and at the date of said issuance of the said policy or relief fund certificate, use alcoholic or other stimulants habitually, and in the ordinary course of his life. Wherefore defendant says that it is not liable." (2) "And for further special plea in this behalf defendant avers by the terms of said policy of insurance or relief fund certificate on the life of said Alexander Price Baker, in which plaintiff was named as beneficiary thereunder, and which is the foundation of this suit, said Alexander Price Baker expressly warranted the truth of his answers to all questions propounded to him by the medical examiner, and expressly agreed that if the answers to such questions were not true that said policy of insurance or relief fund certificate, if issued, would be null and void; and defendant says that to the question propounded said Alexander Price Baker by the medical examiner, V. P. Gaines, viz., 'Do you use alcoholic or other stimulants?' that said Alexander Price Baker answered, 'No,' which said answer defendant avers was untrue, and untrue in this: That the said Alexander Price Baker did on or about the date of making said answer, to wit August 23, 1905, habitually and in the ordinary course of his daily life use alcoholic or other stimulants. Wherefore defendant says that said policy of insurance is null and void, and that it is not liable to plaintiff." (3) "And for further special plea in this behalf defendant avers that said policy of insurance or relief fund certificate on the life of Alexander Price Baker, in which plaintiff was named as beneficiary thereunder (same as plea 1 down to and including the words 'treated as warranties,' where they occur therein, and adds the following:) And defendant says that to the question in said medical examiner's certificate propounded to said Alexander Price Baker, viz., 'What is your occupation?' said Alexander Price Baker answered, 'Clerk in railroad office,' which said answer defendant avers is untrue in this: That the usual and ordinary occupation of the said Alexander Price Baker at or about the date of making said answer, to wit, August 23, 1905, and the date of the issuance of said policy or relief fund certificate, was not that of clerk in a railroad office, but that of a gambler and loafer. Wherefore defendant says it is not liable." (4) Same as plea 2, down to and including the words "null and void," where they first occur therein, with this addition: "And defendant says that to the question propounded to said Alexander Baker by the medical examiner, V. P. Gaines, viz., 'What is your occupation?' that said Alexander Price Baker answered, 'Clerk in a railroad office,' which said answer defendant avers was untrue in this: That the usual and ordinary occupation of the said Alexander Price Baker at or about the date of making said answer, to wit, August 23, 1905, was not that of a clerk in a railroad office. Wherefore defendant says that said policy of insurance was null and void, and that it is not liable." (5) This plea avers that Baker expressly warranted the truth and correctness of his answers to questions propounded by the medical examiner, and it is averred that his answer of "No" to the question propounded to him by the medical examiner, "Do you use alcoholic or other stimulants?" which was embraced in said applicant's statement to the medical examiner, "was untrue and incorrect in this: That said Alexander Price Baker did habitually and in the ordinary course of his daily life use alcoholic or other stimulants at the date he made such answer and statement, to wit, August 23, 1905, and at the date said policy of said insurance was issued. Wherefore defendant says he is not liable."

In his oral charge to the jury the court said: "Now, an occupation, in a legal contemplation, means that which practically takes up one's time and energies, especially one's regular business or employment. The word 'occupation' does not necessarily mean the present occupation, but it means that which principally takes up one's time, thought, and energy, especially one's regular business or employment. For illustration: A man might have a regular occupation, such as that of a painter, and be out of employment, and might temporarily engage in other business, yet, if he was questioned as to what was his occupation, he would give it in as a painter, that being his general occupation, whereas at that moment he might be engaged in other business as a general occupation."

The following charge was given at the request of the plaintiff: (1) "The court charges the jury that, in order to find a verdict for the defendant on the ground that he used alcoholic or other stimulants, you must believe that at the time of making his application for membership in the defendant's order it was the habit of Baker to use alcoholic or other stimulants."

The following charges were refused to the defendant: (1) General affirmative charge. (2) "The court charges the jury that if they believe from the evidence that Alexander Price Baker, on or about August 23, 1905, used alcoholic or other stimulants, you ought to find a verdict for the defendant." (3) "The court charges the jury that if they believe from the evidence that Alexander Price Baker, on or about August 23, 1905, was not engaged in the occupation of clerking in a railroad office, they ought to find a verdict for the defendant."

Bestor, Bestor & Young, for appellant.

McIntosh & Rich, for appellee.

EVANS J.

This was an action in code form on a relief fund certificate or life insurance policy, issued in favor of appellee's intestate on the life of Alexander Price Baker, on September 14, 1905, by appellant, a secret benevolent society, a corporation. Upon the trial of the case issue was joined upon five special amended pleas of confession and avoidance filed by defendant.

There are 27 assignments of error by appellant. The assignments from 1 to 20, both inclusive, are upon the ruling of the court upon the testimony. The twenty-second assignment of error is to the court's giving a certain written charge asked by plaintiff. The twenty-third and twenty-fourth assignments are to the court's refusal to give charges asked by defendant. The twenty-first and twenty-fifth assignments of error are to the definition given by the court, in its oral charge, of the word "occupation." The twenty-sixth assignment of error is to the ruling of the court in admitting in evidence certain receipts tending to show that defendants below, appellants here, had been duly notified of the death of said Alexander...