United Order of the Golden Cross v. Hooser

• Decision Date: 15 April 1909
• Parties: UNITED ORDER OF THE GOLDEN CROSS v. HOOSER.
• Court: Alabama Supreme Court

49 So. 354

160 Ala. 334

UNITED ORDER OF THE GOLDEN CROSS v. HOOSER.

Supreme Court of Alabama

April 15, 1909

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by Mrs. Allie Hooser against the United Order of the Golden Cross. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Stallings & Drennan, for appellant.

Gibson & Davis, for appellee.

DENSON J.

Appellant is a fraternal and mutual benefit association, and as such on the 24th day of February, 1905, issued to James M. Hooser (who was the husband of the appellee) a benefit certificate by the terms of which it undertook to pay appellee, as beneficiary, $2,000 at the death of the insured upon certain recited conditions. The insured died on the 6th day of August, 1906. Appellant refused to pay the claim, and appellee brought this action on the certificate to enforce payment. The trial of the cause in the court below resulted in verdict and judgment in favor of the plaintiff in the sum of $2,000, and the defendant appealed.

The complaint as amended is substantially, if not precisely, in Code form (Code 1896, p. 945, § 3352, form 12), as upon a policy of life insurance, and is not subject to any ground of the demurrer interposed thereto. Commercial Fire Ins. Co v. Capital City Ins. Co., 81 Ala. 320, 8 So. 222, 60 Am Rep. 162. The case of Commercial, etc., Co. v. Morris & Co., 105 Ala. 498, 18 So. 34, cited by appellant in support of the demurrer, was an action, not upon a policy, but for the breach of an agreement to issue a policy of insurance, and is not in point. The certificate stipulates to pay the beneficiary out of its benefit fund in the following terms: "In accordance with and under the provisions of the law governing said benefit fund and upon satisfactory evidence of the death of said member and upon the surrender of this certificate the sum of two thousand dollars; provided the said benefit fund reaches the sum of two thousand dollars at the assessment called in payment of this certificate and if its said assessment shall not reach the said sum of two thousand dollars there shall be paid on said certificate all or a proportionate part of the fund received from the then membership in one assessment; and further provided that said member is in good standing in this order at the time of his death; that this certificate shall not have been surrendered by said member and another certificate issued at his request in accordance with the laws of this order; and provided also that the suspension, disconnection or expulsion of said member shall work an immediate forfeiture of all claims of said member on the benefit fund of the order, also the forfeiture of the claims of the beneficiaries named in this certificate." One of the defendant's by-laws provided that "any member who fails to pay his monthly assessment before midnight on the last day of the month in which it becomes due and payable shall ipso facto stand disconnected from the order," etc.

The defendant for answer to the complaint interposed seven pleas. One and two are pleas of the general issue. Plea 3 avers that the policy provides that payment thereon is conditioned upon the insurant's being in good standing in the order at the time of his death, and avers that insurant was not in good standing at the time of his death. Pleas 4 and 7 aver failure on the part of insurant to pay an assessment due in June, 1906, and that ipso facto he was disconnected from the society, and forfeited all claims under his certificate. Pleas 5 and 6 set up the by-laws of the defendant recited above. Plea 5 avers that the intestate failed to pay his monthly assessment in the month of June, 1906, and that ipso facto he was disconnected from the order, and forfeited all claims under the benefit certificate. Plea 6 is the same as plea 5, except that it avers the additional fact of failure, likewise, to pay the monthly assessment for July, 1906.

Demurrers to pleas 3, 4, 5, 6, and 7, were overruled, whereupon plaintiff filed three special replications. The first of these, as the record shows, is addressed to "defendant's second plea," and sets up a waiver of forfeiture, in that the defendant accepted on July 31, 1906, the dues of the insurant for the months of June and July, 1906, and avers that the insurant was in good standing. It is apparent that the replication is entirely inapt, as an answer to plea 2--the general issue--and we have considered whether or not we should treat it as being addressed to another of the pleas; but the demurrer of the defendant is addressed to it as a replication to the second plea, and the next replication (No. 2) begins as follows: "The plaintiff, replying to pleas 3, 4, 5, 6, and 7, says," etc. We know of no rule by which we may overcome these difficulties, and treat the plea as directed to any one of the other pleas. Argument is unnecessary to show that the replication is subject to one or more of the grounds of the demurrer addressed thereto. Special replication 2 went out on demurrer being sustained to it. Replication 3 is in this language: "(3) The plaintiff, further answering pleas 3, 4, 5, 6, and 7, says that they waived the disconnection of the plaintiff's intestate from said order by accepting the monthly assessments for June and July, 1906, on July 31, 1906. The plaintiff's intestate was a member of said order in good standing." It is obvious, construing this replication most strongly against the plaintiff, that it fails to aver that the assessments were accepted, or that the waiver was made, by the defendant or any one authorized by it to bind it in the premises. The pronoun "they," as used in the replication, may refer to persons not authorized to accept the dues or to make the waiver; and it is so indefinite as to render the plea subject to the seventh ground of the demurrer. For this reason the court erred in overruling the demurrer.

The defendant, after its demurrer to replications 1 and 3 was overruled, denied the allegations of the replications, and filed two special rejoinders, numbered 1 and 2. Rejoinder 1 is in this language: "That by section 3 of law 12 of the order of defendant it is provided that, if more than 30 days have elapsed since the disconnection of a member, such member can only be reinstated by applying to the commandery of which he is a member, and pay in full all dues, assessments, and fines charged against him and unpaid, and furnish the commandery with a certificate from a medical examiner of the order approved by the supreme medical director as to his fitness and condition, and a ballot shall then be ordered by the noble commander, and, if a majority of the votes cast are favorable, he shall be declared a member, otherwise he shall be declared rejected; that, notwithstanding the lapse of more than 30 days from the disconnection of plaintiff's intestate prior to his death as aforesaid in said pleas, yet said intestate had wholly failed to furnish said certificate and had not been declared a member as provided in said law 12, § 3." Rejoinder 2 is as follows: "Defendant further says that at the time of the payment of said money plaintiff's intestate was disconnected and said money was received without notice of the unfitness and conditions of said intestate, and defendant avers that at said time said intestate was unfit and not in a physical condition to warrant his acceptance as a member, all of which was unknown to defendant and was known to plaintiff's intestate, and, had defendant known of said condition, said money would not have been received, and that immediately, upon finding out the condition of said intestate, defendant offered to return said money, and now stands willing to return the same, and has the same on deposit subject to the order of the beneficiary as personal representative of said intestate, and said intestate was never declared as provided by the laws of the defendant a member after his said disconnection, and no part of said money has been used for the benefit of the defendant." The plaintiff, without taking issue upon these rejoinders, surrejoined as follows: "Comes the plaintiff, and, for answer to the rejoinder filed by the defendant, files the same answer to said rejoinder as was filed to the pleas in said case; and further says that they waived the matter therein set up by accepting the due or charges against the plaintiff's intestate as a member of said order in accepting his dues for June and July, 1906, on the 31st day of July, 1906, and on July 31, 1906, the plaintiff's intestate was a member in good standing and said order by accepting said dues for June and July, 1906, on July 31, 1906, waived the right to claim a forfeiture for said months of June and July, 1906." A demurrer to this surrejoinder was overruled by the court. Manifestly the surrejoinder is no answer to the second rejoinder. Assuming, for the present, that the disconnection of the insurant (caused by nonpayment of dues) might be waived by a subsequent acceptance of the unpaid dues, yet if, as the rejoinder alleges, the insured was physically unfit for membership in the order (a fact alleged as being unknown to defendant, but known to the insurant, at the time the dues in arrears were received), and if, as the rejoinder alleges, with knowledge of the insurant's physical condition the dues would not have been received, we fail to see how it could be righteously or legally adjudged that the waiver of the forfeiture was effected by receiving the dues under such circumstances. Mobile, etc., Co. v. Pruett, 74 Ala. 487, 498; Royal Highlanders v. Scovill, 66 Neb. 213, 92 N.W. 206, 4 L. R. A. (N. S.) 421; Supreme Lodge, etc., v. Quinn, 78 Miss. 525, 29 So. 826; Kennedy v. Metropolitan, etc., Co., 116 La. 66, 40 So. 533; 25 Cyc. 859. ...