Opinion
8 Div. 451.
April 13, 1922. Rehearing Denied June 30, 1922.
Appeal from Circuit Court, Morgan County; O. Kyle, Judge.
Thos. W. Wert, of Decatur, for appellant.
Action cannot be brought upon the funeral certificate until the remedies within the order have been exhausted. 176 Mich. 628, 142 N.W. 1052; 161 Ky. 665, 171 S.W. 455; 117 Cal. 370, 49 P. 170, 59 Am. St. Rep. 193; 132 Cal. 294, 64 P. 254; 115 Iowa, 398, 88 N.W. 834; 57 Kan. 647, 47 P. 533; 56 Ohio St. 224, 46 N.E. 577, 49 L.R.A. 381, 60 Am. St. Rep. 745; 134 Mich. 87, 95 N.W. 996; 2 Bacon, Ben. So. (3d Ed.) § 451. Plea 2 was not subject to demurrer. 122 Ala. 149, 25 So. 697, 82 Am. St. Rep. 68; 76 Ala. 388, 52 Am. Rep. 339.
E. C. Nix and G. O. Chenault, both of Albany, for appellee.
The filing of plea 1 was a general appearance. 135 Wis. 505, 115 N.W. 365, 16 L.R.A. (N.S.) 180, 3 Cyc. 525; 4 C. J. 1352; 25 Ala. 534; 150 Ala. 131, 43 So. 208. Such a contract as is set up in plea 1 would be contrary to public policy. 29 Cyc. 207.
The defendant's plea to the jurisdiction No. 2 does not negative the fact that service could be legally had on the defendant in this state as provided by section 17 of the Acts 1911, p. 712. In other words, if the defendant, though a foreign corporation, was at the time of the suit doing business in this state and complied with section 17 of the Act of 1911, service was properly had upon the insurance commissioner, and, such being the case, this being a transitory action, it was suable in this state under the Act of 1907, Special Session, p. 67. Southern R. R. v. Jordan, 192 Ala. 528, 68 So. 418; Larue v. Kershaw Co., 177 Ala. 441, 59 So. 155. Therefore the rule as declared in Pullman Co. v. Harrison, 122 Ala. 149, 25 So. 697, 82 Am. St. Rep. 68, and the Carr Case ( 76 Ala. 388, 52 Am. Rep. 339), there cited, has been changed, and the trial court did not err in sustaining the demurrer to plea 2, or in declining to quash the service of process.
While there is some conflict in the authorities as to what are and are not reasonable provisions as to a condition precedent to bringing an action at law against a mutual benefit society, it seems generally accepted that members of such associations are bound by the Constitution and by-laws and such reasonable provisions contained therein looking to an adjustment and settlement of the claim of a beneficiary under the policy, before suit can be brought for the collection of same. Bacon on Insurance (4th Ed.) § 564; Bacon on Benefit Societies, §§ 123 and 451.
We find no authority, however, which holds that such a provision as the one set up in the defendant's plea 1, as amended, is reasonable and we unhesitatingly hold that the same is unreasonable and contrary to public policy. It seeks to preclude the plaintiff of her right to sue by the default, or nonaction, of the council of one of the defendant's subordinate orders, or lodges, and over whom the plaintiff has no control. From aught that appears from this plea, the plaintiff may have done all things reasonably necessary to procure a settlement and action by the Flintville council, and it would be unreasonable to cut off her right to legal redress because said council failed to present her claim or failed to appeal to the National Judiciary of the defendant.
The trial court did not commit reversible error in permitting the plaintiff to prove that her husband had paid his dues and was a member of the order. She paid some of the dues herself. Moreover, if there was error it was without injury, as the defendant did not question the membership or dues, but only the validity of the reinstatement based on his physical condition.
The judgment of the circuit court is affirmed.
Affirmed.
McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.