Union Central Relief Ass'n v. Thomas

• Decision Date: 05 November 1925
• Docket Number: 3 Div. 720
• Citation: 213 Ala. 666,106 So. 133
• Parties: UNION CENT. RELIEF ASS'N v. THOMAS.
• Court: Alabama Supreme Court

106 So. 133

213 Ala. 666

UNION CENT. RELIEF ASS'N v. THOMAS.

3 Div. 720

Supreme Court of Alabama

November 5, 1925

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Action on a policy of insurance by Ruth Thomas against the Union Central Relief Association. From a judgment for plaintiff defendant appeals. Transferred from Court of Appeals, under Code 1923, § 7326 (Acts. 1911, p. 450, § 6). Reversed and remanded.

John S Tilley, of Montgomery, for appellant.

O.P Lee, of Montgomery, for appellee.

SAYRE J.

Action on a policy of health insurance. The policy contained this stipulation, which was pleaded in defense:

"If a member owe more than two weekly payments, such member shall thereby forfeit his or her right to receive benefits for sickness or disability occurring or continuing between the date of becoming so in arrears and the expiration of a term of five weeks from the date when all back dues are paid up."

Plaintiff pleaded by way of replication, and the facts in evidence were in agreement with the allegations of the replication:

"It is true that on December 8, 1923, the plaintiff owed more than two weekly payments on said policy, and that thereafter plaintiff was in arrears until February 23, 1924. Plaintiff avers that on February 23, 1924, she paid up all back dues, and that thereafter her dues were paid as follows: The payment due February 25, 1924, was paid on March 1, 1924; the payment due March 3, 1924, was paid on March 8, 1924; the payment due March 10, 1924, was paid on March 17, 1924. The plaintiff avers that on the date on which plaintiff became ill, March 13, 1924, the plaintiff owed only the payment due March 10, 1924, which, according to the custom of the defendant, could be paid at any time during the week beginning March 10, 1924. The plaintiff avers that on said March 13, 1924, she was not in arrears, and that by the terms of said policy she is entitled to recover the amount sued for in this action, and so claims $15 of the defendant."

The policy provided that:

"No sick or accident benefits will be paid for less than seven consecutive days."

Construing this replication as meaning that from December 8, 1923, until February 23, 1924, plaintiff was continuously in arrears to the amount of the payments due for two weeks or more--for such was the proof--it appears that plaintiff's disability began and continued during a time less than five weeks after she had...