Woodmen of the World v. Alford

• Decision Date: 16 December 1920
• Docket Number: 3 Div. 455
• Citation: 89 So. 528,206 Ala. 18
• Parties: WOODMEN OF THE WORLD v. ALFORD et al.
• Court: Alabama Supreme Court

89 So. 528

206 Ala. 18

WOODMEN OF THE WORLD v. ALFORD et al.

3 Div. 455

Supreme Court of Alabama

December 16, 1920

Rehearing Denied May 5, 1921

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

Action by Will Alford and others against the Woodmen of the World on beneficial insurance certificate. Judgment for plaintiffs and defendant appeals. Reversed and remanded.

A count in an action by beneficiaries against a mutual benefit society under a certificate of insurance held not sufficiently broad to present issues concerning good standing of insured at the time of his death, sought to be especially pleaded, to which pleas demurrer was sustained.

Count 6 is as follows: Plaintiffs claim of the defendant $3,000, with interest thereon, for that the defendant is a fraternal beneficiary association, issuing policies or certificates of insurance on the lives of its members; that on, to wit, April 24, 1895, the defendant issued a policy or certificate of insurance upon the life of L.H. Alford, who was at that time a member of such association, wherein the defendant agreed to pay the beneficiary therein named the sum of $3,000 in case of the death of the said L.H. Alford after the second year of his membership, while in good standing.

Plaintiffs aver that the beneficiaries therein named were, by and with the consent of the defendant, and at the request of the said L.H. Alford, changed from time to time, and on, to wit, March 21, 1919, by and with the consent of the defendant, and at the request of said L.H. Alford, plaintiffs were named as beneficiaries therein. Plaintiffs aver that said L.H. Alford died on, to wit, the 7th day of April, 1919, while such member was in good standing, and after the second year of his membership, of which defendant has had notice.

The following are the pleas referred to in the opinion:

(8) For further answer to the complainant, and separately and severally to each count thereof, defendant says that its constitution and laws are and constitute a part of the contract sued upon; that said constitution and laws provides as follows:

"Section 109. Every member of this order shall pay to the clerk of his camp each month one assessment payment as required by section 56, which shall be credited and known as Sovereign Camp fund, and he shall also pay such camp dues as may be required by the by-laws of his camp. He shall pay any additional assessment for the Sovereign Camp fund and camp dues, or either, which may be legally called. If he fails to make any such payment on or before the first day of the month following he shall stand suspended, and during such suspension his beneficiary certificate shall be void."

Section 115 of the said constitution and laws provides:

"Should a suspended member pay all arrears and dues to the clerk of his camp within ten days from the date of his suspension and if in good health and not addicted to the excessive use of intoxicants, or narcotics, he shall be restored to membership and his beneficiary certificate again become valid.

"After the expiration of ten days and within three months from the date of suspension of a suspended member to reinstate he must pay to the clerk of his camp all arrearages and dues and deliver to him a written statement and warranty signed by himself and witnessed that he is in good health and waiving all rights thereto if such written statement and warranty be untrue.

"Any attempted reinstatement shall not be effective for that purpose unless the member be in fact in good health at the time, and if any of the representations or statements made by said applicant are untrue then said payment shall not cause his reinstatement nor operate as a waiver of the above conditions.

"Section 118. No suspended member shall be reinstated whose health is at the time impaired. Should any clerk knowingly violate this section he shall, on proof thereof, be suspended from his office by the Sovereign Commander and expelled from the order by his camp.

"Section 119. A member suspended for non-payment of assessments or dues is not entitled to any benefits of the order."

Defendant alleges that said Alford was suspended on the 1st day of April, 1914, for the nonpayment of his assessment for the month of March, 1914; that on, to wit, the 18th day of April, 1914, said Alford, after having been suspended for more than 10 days, paid to the clerk of his camp the regular assessment, but failed to deliver to him a written statement and warranty signed by himself, and witnessed that he was in good health, wherefore he was never reinstated, his beneficiary certificate is null and void, and defendant is not indebted to the plaintiff.

(9) The defendant adopts its eighth plea down to and through section 119 of the constitution and laws as therein set out, and makes the same a part of this plea and in addition thereto adds the following: Defendant alleges that said Alford was suspended on the 1st day of April, 1914, for the nonpayment of his regular assessment for the month of March, 1914, and remained suspended for more than 10 days; that after he had been suspended for 10 days he attempted to become reinstated, and paid to the clerk of his camp the regular assessment for which he was in arrears, but at the time he made said payment he was not in good health, for that he was suffering from diabetes; therefore, according to the constitution and laws above set out, he never became reinstated, and never gained his good health from that time until he died, wherefore defendant is not indebted to the plaintiff.

(11) The defendant adopts its eighth plea down to and through section 119 of the constitution and laws as therein set out and makes the same a part of this plea, and in addition thereto adds the following: The said L.H. Alford committed a fraud upon the defendant in this, that he was suspended from defendant order at the end of the 1st day of April, 1914, for the nonpayment of his assessment for the month of March, 1914; that on the 18th day of April, 1914, the said Alford went to the clerk of his local camp and offered to pay all arrears for regular assessments and dues for the purpose of reinstating himself as a member; that at the time he was suspended and at the time he paid said arrearages to said clerk at some time prior thereto he had been and was suffering from diabetes; that said Alford knew, or had been informed by his physician before he made said payment to said clerk, that he was suffering from diabetes, and at the time he made said payment he had been suspended for more than 10 days, and, having knowledge or having been informed by his physician that he was suffering from diabetes, nevertheless he failed to notify or inform said clerk that he was suffering from said disease, and concealed his true physical condition from said clerk, and from this defendant, and defendant never discovered said Alford's true physical condition until after his death; wherefore defendant, by reason of the concealment of his physical condition, treated him as having been reinstated. Defendant says that, on account or by reason of the fraud above set out, said Alford was never reinstated, and it is not indebted to plaintiffs.

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

L.A. Sanderson and Hill, Hill, Whiting & Thomas, all of Montgomery, for appellees.

THOMAS J.

The suit was by the beneficiaries named in a certificate of insurance of the Woodmen of the World, a corporation, on the life of L.H. Alford.

The sixth count of the complaint sufficiently stated a cause of action. It alleged a promise to pay the amount of the insurance to the beneficiaries named in the certificate, and that plaintiffs are such beneficiaries. This was a sufficient allegation of ownership. That the certificate issued on April 24, 1895, was in force at the time of the death of insured in shown by the averments that the policy or certificate was an agreement to pay to beneficiaries the sum of $3,000 in case of the death of insured after the second year of his membership while in good standing, and that--

"Said L.H. Alford died on, to wit, the 7th day of April, 1919, while such member was in good standing, and after the second year of his membership, of which defendant has had notice."

The facts averred were sufficient to place on defendant the duty of payment. W.O.W. v. Burrell, 204 Ala. 210, 85 So. 762, 764; W.O.W. v. Adams, 204 Ala. 667, 86 So. 737. The change of beneficiary was averred to have been made by and with the consent of the defendant, which is binding on defendant as to its liability to the beneficiaries last named.

A preliminary question presented in the bill of exceptions by the following recitals was:

"The defendant called Judge McCord's attention to the fact that he was a member of Silver Leaf camp of the Woodmen of the World, a local camp of this defendant, and was interested in the funds and money of this defendant and for that reason he was disqualified, being a member of the defendant order, and the defendant thereupon objected to Judge McCord as the judge to preside and try this cause, and challenged him for his incompetency. Judge McCord *** stated that he was a member of said Silver Leaf camp, Woodmen of the World, and held a beneficiary certificate from and issued by the defendant," and overruled defendant's "challenge and objection to his proceeding and trying this case, and said judge" did "preside during the trial thereof, *** to which action of the court the defendant then and there duly and legally excepted."

Disqualifications declared by our statute are:

"No judge of any court, chancellor, county commissioner, or justice, must sit in any cause or proceeding in which he is interested, or related to either party within the fourth degree of

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