Opinion
7 Div. 240.
November 16, 1922.
Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.
C. H. Roquemore, of Montgomery, for appellant.
Counsel argue that the trial court erred in overruling defendant's demurrers to counts 4 and 5 of the complaint and in sustaining plaintiff's demurrers to defendant's special pleas, citing 206 Ala. 18, 89 So. 528; 89 So. 58; 206 Ala. 49, 89 So. 63. The plaintiff should not have been allowed to interrogate defendant's counsel, as a witness, when and where he got the affidavit and premium receipt book, as this was a violation of the rule for confidential communications. 196 Ala. 327, 71 So. 404.
Goodhue Goodhue, of Gadsden, for appellee.
Counts 4 and 5 were not subject to the demurrers assigned thereto. 194 Ala. 681, 69 So. 884; 196 Ala. 330, 71 So. 404. The record shows no ruling on plea 2 as amended. If the policy was delivered on December 31, 1919, and initial payment made on that date, the next monthly premium would not become due and payable until January 31, 1920, and if deceased died on February 24, or 25, 1920, the premium could not have been in arrears 30 days. The provision for payment "on or before the 1st day of each consecutive month thereafter" means the 1st day of each consecutive calendar month. 46 Neb. 427, 65 N.W. 46, 30 L.R.A. 450, 50 Am. St. Rep. 617; 59 Ga. 392; 91 Me. 250, 39 A. 1027.
The trial and verdict rendered were on counts 4 and 5, added by way of amendment, plea of the general issue, special plea 2 as amended and as answer to said counts. Counts 2 and 3 were eliminated by the general affirmative charge requested in writing by the defendant.
Count 4 was not subject to the grounds of demurrer assigned. Eminent Household, etc., v. Gallant, 194 Ala. 680, 69 So. 884. Count 5 was likewise free from demurrer assigned. Sovereign Camp v. Ward, 196 Ala. 327, 330, 71 So. 404. These counts, added by way of amendment to the complaint, were by a minor suing by a next friend, and were in form required by law of such suits. Smith v. Yearwood, 197 Ala. 680. 73 So. 384; Robinson Lumber Co. v. Sager, 199 Ala. 675, 75 So. 309; Alabama Power Co. v. Hamilton, 201 Ala. 62, 66, 77 So. 356; Wynn v. Hoffman, 203 Ala. 72, 73, 82 So. 32.
There was no prejudicial error in ruling on pleadings as shown by the judgment entry. We cannot consider the ruling as on demurrer to plea 2 as amended, as an answer to counts 4 and 5 added to the complaint by way of amendments. In the contract are employed the words, referring to the payment of premiums, "monthly installment," "following month," and "monthly payment"; the word "month," as so used in the beneficiary certificate and exhibits thereto or documents incorporated therein by agreement of the parties, had reference to a calendar month. This is the usual acceptation of the word "month," unless it appears in the context to have been intended otherwise. Bartol v. Calvert, 21 Ala. 42, 46; Doyle v. First National Bank, 131 Ala. 294, 30 So. 880, 90 Am. St. Rep. 41; Oberhaus v. State ex rel. McNamara, 173 Ala. 483, 55 So. 898; Sheets v. Seldon, 2 Wall. 177, 17 L.Ed. 823; Guaranty Trust, etc., Co. v. Green Cove etc., Co., 139 U.S. 137, 11 Sup. Ct. 512, 35 L.Ed. 116, 119; McGinn v. State, 46 Neb. 427, 65 N.W. 46, notes to 30 L.R.A. 450, and 50 Am. St. Rep. 617; Daley v. Anderson, 7 Wyo. 1, 48 P. 839, note to 75 Am. St. Rep. 870; Guaranty Trust, etc., Co. v. Buddington, 27 Fla. 215, 9 So. 246, 12 L.R.A. 770 note; 3 R. C. L. p. 1214; 26 R. C. L. p. 732; 38 Cyc. 311.
A general rule of construction of beneficiary certificates and policies of insurance, when subject to two or more constructions, in the same will be taken most strongly against the assurer and in favor of the assured. Such is the construction that is given to ambiguous terms in constitutions, laws, and by-laws of a mutual benefit society as made a part of beneficiary certificates, if the same be of doubtful import. Woodmen v. Alford, 206 Ala. 18, 89 So. 528, 533; Union Central v. Johnson, 198 Ala. 488, 73 So. 816; Cherokee Life Co. v. Brannum, 203 Ala. 145, 82 So. 175.
When the contract sued on is so construed, and the advance payment of $1.60 as a monthly premium on December 31, 1919, is held to be for the calendar month to follow, no forfeiture ensued for nonpayment of premiums. The receipt book in evidence indicated the payment of a like sum on January 28, 1920, and on the same date an additional sum of $1.60. If these payments were properly made to the defendant as premiums on the beneficiary certificate, the same was extended and in force to and within the month of March. The death of assured was on February 24 or 25, 1920, within the life or term of the beneficiary certificates under foregoing facts. However, if the payment of $1.60 on December 31, 1919, be held to have been for premiums accruing on the certificate from its date of December 15, 1919, to that of its delivery on December 31st, when the clause of the contract is given application, providing for the continuing in force of such contracts of insurance, there was no forfeiture that avoided the policy. A "period of grace" is thus provided in the beneficiary certificate:
"All premiums are payable at the home office of the society, but may be paid to an authorized representative of the society; such payments to be recognized by the society must be entered at the time of the payment in the premium receipt book belonging with this certificate. If for any reason the premium be not called for when due, by the authorized representative of the society, it shall be the duty of the member before said premium shall be in arrears thirty days, to bring or send said premium to the home office of the society or to one of its local representatives. If the premiums are not paid as herein specified, this contract shall become null and void.
" Period of Grace. — Should the death of the member occur while any premium hereon is in arrears, not exceeding thirty days, the society will pay the amount of benefit provided herein, subject to the conditions of the certificate."
To this phase of the case and evidence relating thereto we will advert, after passing upon several of the rulings in the admission and rejection of documentary evidence at the trial. A relation of the beneficiary (Opie Reed) was in attendance at the trial and may have been subject to examination as a witness by the party so desiring, and he was not made a witness. Defendant, however, sought to have read in evidence the affidavit of said Reed, which was said to have been received by defendant with the proof of death. Objection to the introduction in evidence of this affidavit was made by plaintiff and sustained by the court. This effort to give the affidavit in evidence, rather than call the affiant as a witness, was not by way of his impeachment, or contradiction of any other witness under the rules obtaining in such matters. The court suggested that, if the facts alleged to be contained in the affidavit were desired by the defendant, the affiant was present and might be called as a witness and examined in relation thereto; that course was not adopted by the defendant. The beneficiary named in the certificate (making the proof of death) testified (and as to this was not contradicted) that she did not authorize or send the affidavit in question as a part of her proof of death; that she gave the proof of death to Mr. Webster. The mere fact that Reed went with beneficiary to Webster when proof of death was made did not authorize Reed, of his own motion or at the instance of Webster, to make the affidavit and deliver the same as a part of the proof of death. If the matter incorporated in the affidavit was evidence for defendant, it should have been offered on the trial, under the rules governing the introduction of evidence viva voce. The effect of plaintiff's evidence and reasonable inferences to be drawn therefrom, on the fact of payment of premiums for the calendar months immediately succeeding December 31, 1919, cast on the defendant the burden of going forward with the evidence on the issue of payment vel non. Starks' Case, 190 Ala. 245, 67 So. 440; Lawson v. Mobile Elec. Co., 204 Ala. 318, 85 So. 257.
The predicate was sufficient to authorize the introduction in evidence of the receipt book, indicating the payments and the date thereof of the several premiums. Such a book was required and provided by defendant to be used in making the payment of premiums. The evidence of Mrs. Rena Reed was sufficient to afford a reasonable inference of its transmission to the home office with the proof of assured's death; it was produced at the trial by counsel for defendant. We find no evidence contradicting the prima facie effect of the entries of payment of premiums shown by the receipt book.
There was no error in admitting in evidence the beneficiary certificate along with the evidence showing the true date of the delivery and acceptance of the same. Under the terms of the contract, that of the constitution, laws, and by-laws made a part thereof by specific reference, compliance of such contract terms by defendant necessitates proof of the true date of delivery and acceptance, and this was the subject of parol proof. Formby v. Williams, 203 Ala. 14, 19, 81 So. 682.
In response to subpœna duces tecum, defendant produced at the trial the several documents indicated, one of which was the premium receipt book. That book was admitted in evidence with the beneficiary certificate (and referred to in the policy or certificate) and recited that it was of defendant; that its district manager was Daniel Webster; that the certificate on the life of assured and the monthly premiums were $1.60, and that all premiums paid must be entered on said book, and which may be paid at the branch office indicated, and —
"If the deputy does not collect the premiums when due send it to the branch office or to the home office in Omaha, Neb. Express or postal money orders should be payable only to the Woodmen of the World. Always send this receipt book with your remittance. Monthly premiums $1.60. Date premiums paid were December, when paid '12-31,' signature of Collector 'J. W. Cohron.' Monthly premium $1.60, date premiums are paid were 1920 for month of January, when paid '1-28,' signature of collector 'J. W. Cohron,' monthly premium $1.60, date premiums paid for 1920 February '1-28,' signature of collector 'J. W. Cohron.' Be safe and keep premiums paid in advance."
We judicially know that the abbreviations unexplained (as we have indicated) entered therein were or purported to be of receipts of the three payments of premiums in the sum of $1.60 on December 31, 1919, and the sum of $3.20 on January 28, 1920.
The subsequent payments entered in apparent due course of defendant's insurance business, and by the same officer who acknowledged the first payment, were exercise or continuation of this initial authority; and the acceptance of the benefit accruing therefrom to defendant was sufficient to induce assured to the reasonable belief that like authority continued to receive and receipt for subsequent premiums. South. States, etc., Co. v. Kronenberg, 199 Ala. 164, 74 So. 63. In the absence of testimony to the contrary, the subsequent payments entered on the receipt book were (prima facie) a sufficient acknowledgment of payments and receipts thereof by defendant, as to cast upon the latter the burden of going forward with the evidence denying such authority and receipt of payments of premiums. South. States etc. Co. v. Kronenberg, 199 Ala. 164, 74 So. 63. This burden the defendant did not discharge. Sovereign Camp W. O. W. v. Adams, 204 Ala. 667, 86 So. 737.
This prima facie effect of evidence tending to show subsequent payments of premiums was not overcome by the indorsement purported to have been made or contained in the proof of death. The beneficiary testified to the effect that she made no such indorsement or authorized another to indorse thereon the statement that "only first payment was made by assured or authorized by beneficiary." The entry of such a statement on the proof of loss or death was under question No. 16, "State the name and residence of every physician who has attended deceased during the past two years," answer, "Dr. Guy Stewart, Attalla, Ala. Dr. J. M. McElroy, Attalla," and before the question and answer No. 17, "Was deceased married or single," "Married," was irregular and tended to support the testimony of beneficiary. We are of opinion that it was not sufficient to overturn the evidence tending to show the payments of premiums for the calendar months.
The undisputed evidence showed the due issue of the beneficiary certificate to the husband of plaintiff, insuring him for life; that he died on February 24 or 25, 1920, and of his death due notice was given. And there was no plea denying the execution of the policy. The certificate and proof of death in evidence made a prima facie case of liability. The burden of going forward with the evidence showing forfeiture of the certificate for failure of conditions subsequent that rendered the policy null and void at the time of the death of the assured was upon defendant, who failed in that proof. There was no evidence that subsequent payments were not made before default and that by reason thereof under the terms of the certificate it was null and void on the date of the death of assured. Sovereign Camp, etc., v. Adams, 204 Ala. 667, 86 So. 737, 741(10); Manhattan Life Ins. Co. v. Verneuille, 156 Ala. 592, 47 So. 72.
The provisions of the certificate which render it null and void are:
" Certificate When Void. — This certificate shall be void; (a) if any certificate previously issued by this society on the life of the member shall be in force on the date hereof unless the existence of such previous certificate be noted by an endorsement hereon, signed by the Sovereign Commander or Sovereign Clerk of the society, and the society shall not be presumed or held to know of the issuance of any prior certificate, and the issuance of this certificate shall not be deemed a waiver of this condition; (b) if the member before this date has been attended by a physician for, or has had before said date any tubercular disease or consumption or chronic bronchitis, or cancer, or epilepsy, or disease of the brain, heart, liver or kidneys, and the testimony of any physician to, or medical adviser of the member as to such disease or complaint shall be admissible in evidence.
"If for any cause the certificate shall be or become void all premiums paid thereon shall become forfeited to the society except as provided herein."
No such default is pleaded or shown under last-quoted provisions of the certificate, rendering it void. Sovereign Camp v. Adams, 204 Ala. 667, 86 So. 737.
On the 15th day of December, 1919, defendant company issued at its office the certificate or policy of insurance sued on and sent it for delivery to Fordney Reed in this state, and it was delivered to him on the 31st day of December, 1919, upon the payment by him of $1.60. This certificate of insurance contained the clause:
"This certificate is granted in consideration of the monthly premium hereinbefore stated in the schedule and of the payment of a like amount on or before the 1st day of each consecutive month thereafter during the continuance of this contract, and the further consideration of the delivery of this certificate during the lifetime and good health of the member."
— and the condition for "Period of Grace," quoted above, and that recognized and provided as follows:
"If, for any reason, the premium be not called for when due by the authorized representative of the society, it shall be the duty of the member, before said premium shall be in arrears thirty days, to bring or send said premium to the home office of the society, or to one of its local representatives. If the premiums are not paid as herein specified, this contract shall become null and void."
The constitution and by-laws of the defendant in evidence provided:
"Sec. 57. The liability of the Sovereign Camp for the payment of benefits on the death of a member shall not begin until after his application shall have been accepted by a Sovereign Physician, his certificate issued, and he shall have:
"First. Paid all entrance fees.
"Second. Paid one or more advance annual assessments and dues or one or more advance monthly installments of assessments and dues, known as Sovereign Camp fund; also signed his certificate and acceptance slip attached thereto.
"Third. Paid the physician for medical examination.
"Fourth. Been obligated or introduced by a camp or by an authorized deputy in due form.
"Fifth. Had delivered to him, in person, his beneficiary certificate while in good health.
"The foregoing are hereby made a part of the consideration for, and are conditions precedent to, the liability for the payment of benefits in case of death."
There are no pleadings or proof of a failure of either of the foregoing conditions precedent to an efficacious delivery of an efficient beneficiary certificate of insurance, or of failure of compliance with —
"Sec. 58 (a). Upon the delivery of a beneficiary certificate to an applicant he shall pay to the clerk of his camp an amount equal to the proportionate part of a monthly installment due from the date his certificate is dated by the Sovereign Clerk, and also pay one monthly installment for the following month for his age as provided in tables of rates in sections 60 and 61 of these laws, and one monthly payment of camp dues."
Fordney Reed died on the 24th or 25th of February, 1920, and under the evidence it is shown that the $1.60 paid on the 31st day of December, 1919, represents and is in full of what were the preliminaries required by section 58 (a) of the constitution and by-laws of the defendant. That is to say, if the $1.60 that was paid by applicant upon the delivery of the beneficiary certificate represents an amount equal to the proportionate part of a monthly installment due from the date his certificate is dated by the Sovereign Clerk, and if it did not extend the certificate in force to January 28, 1920, by the payment of two additional sums, in like amount, on January 28, 1920, as the death occurred on the 24th or 25th of February, 1920, it was within the conditions of the policy providing for a 30-day "period of grace."
This is not only true when sections 57 and 58 (a) of the constitution are considered, but is true because of the general principle we have stated that —
"The term 'month' whether employed in statutes or contracts, and not appearing to have been used in a different sense, denotes a period terminating with the day of the succeeding month numerically corresponding to the date of its beginning less one. If there be no corresponding day of the succeeding month, it terminates with the last day thereof."
Refused charges requested by defendant in writing were contrary to the foregoing and properly and duly declined of instruction.
The reception in evidence of the proof of death and the premium receipt book received from the defendant's attorney was an act in production of competent documentary evidence in response to a subpœna duces tecum (3 Bl. Comm. 382), and was not within the inhibitions of the rule of privileged communications, but was of evidence intended to be produced on due notice by the adverse party. Chapman v. Peebles, 84 Ala. 283, 4 So. 273; White v. State, 86 Ala. 69, 5 So. 674; M. M. R. Co. v. Yeates, 67 Ala. 164; South. Bitulithic Co. v. Hughston, 177 Ala. 559, 569, 58 So. 450; 1 Greenl. on Ev. (14th Ed.) §§ 244, 245. The ruling in Sovereign Camp v. Ward, supra, had reference to the private correspondence — a letter directed to an official of the camp by its general attorney relating to a compromise of the claim. The documents produced on due notice at this trial were compelled by subpœna that may have been directed to the general attorney of the defendant; and the fact that its production was in response to subpœna or due notice to attorney of the defendant representing it at the trial, and to whom the documents were transmitted by the general attorney, did not bring these documents within the class and protection of privileged communications.
Where the oral charge is considered as a whole, no error was committed. There was no pleading denying the execution of the beneficiary certificate made the subject of the suit, nor is it denied that due notice of death of assured was given. Plaintiff made out a prima facie case, as instructed by the court, on the admission in evidence of that certificate or policy and the proof showing death of assured and due notice to defendant. Sovereign Camp W. O. W. v. Adams, 204 Ala. 667, 672, 86 So. 737. There was no error in the portion of oral charge made the basis of first exception taken.
The beneficiary certificate did not take effect until its due delivery and acceptance on December 31, 1919, pursuant to its terms — delivery during life and good health of that (assured) member. Cherokee Life Ins. Co. v. Brannum, 203 Ala. 145, 82 So. 175. Hence the third exception to the general charge is without merit, and the general affirmative charges requested by defendant as to counts 4 and 5 were properly refused.
A further exception reserved to the instruction contained in the oral charge to the effect that in event plaintiff recovers she was entitled to the amount of the beneficiary certificate "and interest on it from 11th day of May, 1921, up to the date of the trial at 8 per cent." The terms of the policy shedding light upon the time of payment are that "on receipt of due proofs of the death" of assured, "and upon surrender of this (the beneficiary) certificate and all receipt books"; that the proof of claim "shall be made on blanks to be provided by the society, and shall contain full answers of the claimant, physician and other persons to all the questions asked therein and shall conform to all the requirements thereof," etc.; and that no suit shall be maintained to enforce the performance of the contract "until ninety days after the filing in home office of the society (Omaha, Neb.) proof of loss as herein provided, nor after one year from the date of such loss." The proof of loss is of date of March 11, 1920, showing death of assured on February 25, 1920; the suit was brought on June 21, 1920, and defendant filed its pleadings challenging or resisting payment, respectively, July 12, 1920, and April 6, 1921. The judgment was of date of May 3, 1921, for $1,078.22. The evidence fails to disclose when the proof of death, beneficiary certificate, and receipt book reached the home office of defendant at Omaha, Neb. It is fair to assume, under the issues made by the pleading, that it was received before the suit or defendant's pleading therein.
The clause in the beneficiary certificate limiting time within which suit may be brought had no effect on the time within which interest began to accrue for nonpayment of the beneficiary certificate. The amount thereof being $1,000, interest thereon at legal rate from date defendant appeared and filed initial pleading resisting payment (July 12, 1920) to the date of the judgment on May 3, 1921, the aggregate amount of the judgment should have been $1,064.67. That sum with interest (Code, § 4621) to date of rendition of this judgment is $1,187.56. The appellee will enter remittitur for $13.55, the excess interest included in judgment, within 10 days from rendition of this judgment; failing therein, the judgment is reversed, and the case is remanded. Cassels v. Ala. City, etc., Co., 198 Ala. 250, 73 So. 494; Cook v. Bell, 177 Ala. 618, 59 So. 273; Nixon v. Smith, 193 Ala. 443, 69 So. 117; United Order, etc., v. Richardson, 202 Ala. 305, 80 So. 370; Montgomery Light W. Power Co. v. Thombs, 204 Ala. 678, 87 So. 205; United States Fidelity v. Millonas, 206 Ala. 147, 89 So. 732; Central of Georgia Ry. Co. v. Robertson, 206 Ala. 578, 91 So. 470; General Acts 1915, p. 610.
The judgment of the circuit court is reversed, and the case is remanded on condition; if remittitur is so entered, the judgment as modified is affirmed.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.