Opinion
6 Div. 737.
June 17, 1926.
Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.
Erle Pettus, of Birmingham, for appellant.
The complaint is not sufficient. U.S. H. A. Ins. Co. v. Savage, 185 Ala. 232, 64 So. 340; Knights, etc., v. Gillespie, 14 Ala. App. 493, 71 So. 67; U.S. H. A. Ins. Co. v. Veitch, 161 Ala. 630, 50 So. 95; Pence v. Mutual, etc., Co., 180 Ala. 583, 61 So. 817. It was error to sustain demurrer to plea 4. U. O. G. C. v. Hooser, 160 Ala. 334, 49 So. 354. Replication 10 was insufficient to aver waiver, and was subject to demurrer. Code 1923, § 8477; Sovereign Camp v. Allen, 206 Ala. 41, 89 So. 58. Rejoinder F clearly set up a complete defense and was not subject to demurrer. U. O. G. C. v. Hooser, supra; Sovereign Camp v. Adams, 204 Ala. 672, 86 So. 737.
W. S. Pritchard and J. D. Higgins, both of Birmingham, for appellee.
In the absence of a bill of exceptions, the appellate court will presume there was evidence sustaining the rulings of the trial court. Amer. Trust Co. v. Hanna, 19 Ala. App. 301, 97 So. 154; Whitmire v. Spears, 212 Ala. 583, 103 So. 668; Mooneyham v. Herring, 210 Ala. 168, 97 So. 638. The complaint, following the Code form, is sufficient. Code 1923, § 9531; Sovereign Camp v. Carrell, 20 Ala. App. 340, 101 So. 914. There is no error in sustaining demurrer to a special plea, where defendant has the benefit of all material facts set up therein. Sunny South Grain Co. v. National Feed Co., 20 Ala. App. 145, 101 So. 542. Receipt and retention of overdue premiums is a waiver of forfeiture. Security Mutual v. Riley, 157 Ala. 553, 47 So. 735; Pacific Mutual Life Ins. Co. v. Hayes, 202 Ala. 450, 80 So. 834. Conditions relating to reinstatement of a lapsed benefit certificate may be waived by the supreme officers. Yarbrough v. Sovereign Camp, 210 Ala. 188, 97 So. 654; Sovereign Camp v. Eastis, 210 Ala. 29, 96 So. 866.
Suit on a policy of health insurance. There was extended pleading. The appeal is by defendant on the record proper; there being no bill of exceptions. The merits of the case, so far as disclosed by the pleading, may be reached and determined by consideration of the trial court's rulings on the demurrers to the complaint, plea 4, replication 10, and rejoinder F.
The demurrer to the complaint, stated in a single count, was properly overruled. The complaint followed the form of complaint on a policy of life insurance as shown by form 12, section 9531, of the Code of 1923, a closely analogical case. It will be noted that the form referred to differs from the form prescribed by the Code of 1907 (section 5382), in that the form of later date omits the allegation "for the term of __________ years." However, the allegation of the complaint, after stating the date of the policy, is that defendant "insured for the term of one month, and from month to month thereafter, so long as the monthly premium was paid, the health of the plaintiff. * * * And plaintiff avers that he paid the monthly premiums covering the time when he became ill," so that defendant's grounds of objection to the complaint, viz. that the policy is not thereby shown to be in effect at the time of plaintiff's illness, and fails to allege its date and the term of its operation — these objections are answered by the specific allegations of the complaint. The demurrer was properly overruled.
The proper matter of defendant's fourth plea was that plaintiff became delinquent, and was not entitled to benefits under his alleged policy, by reason that he failed to pay his dues for the month of July, 1923, and thereafter in, to wit, August, 1923, became ill. This matter was substantially covered by special plea 5, which went to the jury, and, indeed, by the general issue, which answered, among other things, the allegation of the complaint that plaintiff had paid the monthly premiums covering the time when he became ill. As for the rest of the plea, it witnessed an effort to answer in anticipation a matter of replication not yet pleaded. As the pleading then was, this added matter was irrelevant, and due to be left out of account in passing upon the sufficiency of the plea. There was no reversible error in sustaining the demurrer; it was error without injury.
Nor was there error in overruling the demurrer to replication 10. The objection to this replication proceeds upon the theory that members of the defendant association or society are, or were, at the time in question, bound by the stipulation set forth in section 8477 of the Code, which provides:
"8477. Waiver of Certain Provisions. — The constitution and laws of the society may provide that no subordinate body, nor any of its subordinate officers or members shall have the power or authority to waive any of the provisions of the by-laws and constitution of the society, and the same shall be binding on the society and each and every member thereof and on all beneficiaries of members."
But it had not appeared in the pleading that defendant association had provided that the section should be the law of the association, nor in this pleading or elsewhere was it shown that plaintiff's policy contained a stipulation against a waiver by subordinate officers or members, and, further, as to that, the replication alleges in effect a waiver by defendant corporation. In these respects the case in hand differs from the case reported as Sovereign Camp v. Allen, 206 Ala. 41, 89 So. 58.
The fact that defendant was a fraternal benefit society and the provisions of its constitution and by-laws to the effect that a member in default could not be reinstated except by defendant's board of directors or a duly constituted committee thereof — these facts were alleged in rejoinder F, but, in view of the allegation in replication 10, that plaintiff's dues for July and August were transmitted to defendant by its local agent, and that "the defendant," with knowledge of the fact that plaintiff was delinquent, and was sick when such dues were paid to defendant's local agent, did accept and retain the dues so paid by plaintiff, so much of replication 10 as undertook to show a waiver by defendant's local agent may for the moment be laid out of view. The allegation of replication 10, the effect of which is stated above, remained to be answered, and was answered by rejoinder F. True, the allegation of replication 10 as to waiver by "the defendant" was put in issue by the general rejoinder D, but, in the absence of the allegations of rejoinder F as to the constitution and by-laws of defendant association (demurrer to other rejoinders containing like allegations having been sustained also), defendant had no opportunity, it must be presumed, to give in evidence those provisions of the constitution and by-laws which would have answered the allegation of replication 10, intended, as we must assume, to set up a waiver by defendant's local agent. It results that the ruling against the sufficiency of rejoinder F was error prejudicial to defendant's case, for which the judgment must be reversed notwithstanding there is no bill of exceptions. Henderson v. Tennessee Co., 190 Ala. 126, 67 So. 414.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.
I prefer basing my concurrence in the reversal of this case upon the ground that the charges are set out in the record, as was done in the Henderson Case, supra, and the action of the trial court in giving some and refusing others is sufficient to show that the defendant was probably injured by the sustaining of the demurrer to its rejoinder.