Supreme Ruler of Mystic Circle v. Darwin

• Decision Date: 09 May 1918
• Docket Number: 8 Div. 18
• Citation: 79 So. 259,201 Ala. 687
• Parties: SUPREME RULER OF MYSTIC CIRCLE v. DARWIN.
• Court: Alabama Supreme Court

79 So. 259

201 Ala. 687

SUPREME RULER OF MYSTIC CIRCLE v. DARWIN.

8 Div. 18

Supreme Court of Alabama

May 9, 1918

Appeal from Circuit Court, Madison County; R.C. Brickell, Judge.

Action by Mattie Lee Darwin against the Supreme Ruler of the Mystic Circle. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Taylor & Watts, of Huntsville, for appellant.

Addison White and Lanier & Pride, all of Huntsville, for appellee.

ANDERSON C.J.

The trial court seems to have tried this case upon the idea that the policy contract was governed by sections 4572, 4573, and 4579 of the Code of 1907. The appellant, however, being a secret fraternal benefit society or association, did not belong to the class dealt with in said sections of the Code. Eminent Household of Columbian Woodmen v Blackerby, 78 So. 821; Locomotive Engineers Ins. Co v. Hughes, 77 So. 352, wherein the cases of National Ins. Co. v. Sherry, 180 Ala. 627, 61 So. 944, and Brotherhood v. Miller, 193 Ala. 68, 69 So. 10, were overruled upon this point. The policy is therefore controlled by the legal principles announced in the case of Ala Gold Ins. Co. v. Johnson, 80 Ala. 467, 2 So. 125, 59 Am.Rep. 816, and the case should have been tried accordingly. Though it must be said, in justice to the trial court, that the cases overruling the Sherry and Miller Cases, supra, had either not been decided or published when the case at bar was tried.

We think that the record unquestionably shows that the defendant is a secret, benefit order not governed by the sections of the Code above noted. The defendant's answer to the interrogatories not only discloses this fact, but the application or declaration for a charter recites:

"The object of the said corporation is to unite fraternally white persons of proper age and good social and moral character in a fraternal beneficial and relief society, with ritualistic or secret work for beneficial and protective purposes."

As this case must be reversed and tried under the law as laid down in the Ala. Gold Ins. Case, supra, instead of the sections of the Code above noted, it is not out of place to suggest that under the evidence as now presented it is quite material whether or not the insured was bound solely by the representations and warranties made at the time of the issuance of the policy or the change thereof in 1902, or by those made upon the reinstatement of same in 1915. There is no proof whatever of misrepresentations or a breach of warranty in procuring the original policy or a change thereof in 1902, though there was proof of same as to the application for a reinstatement in 1915, and if the insured had been properly and legally suspended under the terms of the policy the application and statements of 1915 were a condition precedent to reinstatement and would be binding upon him. On the other hand, had there been no lapse of the original policy, that is, if he had not in fact been suspended as for nonpayment of dues, as set out in the application for reinstatement in 1915, and which was approved June 9, 1915, and the statements made were induced through a mutual mistake or through a mistake of the insured improperly induced by the defendant, he was not bound thereby.

The statements made in the application for reinstatement, though not conclusive, were prima facie evidence that the insured had been suspended for nonpayment of dues, and made it incumbent upon the plaintiff to show that he had not been properly suspended, notwithstanding the application and attempted reinstatement. The plaintiff attempted to do this by showing divers and...