Sovereign Camp, W. O. W. v. Dennis

SAMFORD, J. The complaint was in two counts as follows: “(1) Plaintiff claims of the defendant $500, together with the interest thereon, due her um der and by the provisions of that certain beneficiary certificate issued to-L. B. Dennis, No. 83496, Alabama, by defendant on the 21st day of November, 1917, wherein it is provided that in case of the death of the said L. B. Dennis, while in good standing, should his death occur during the first year of his membership, defendant would pay to plaintiff, bearing relationship to the said L. B. Dennis of wife, said sum of $600. And plaintiff avers that the said L. B. Dennis, while in good standing, during the first year of his membership, died, and that the defendant has had due notice of his death, and has refused to pdy to plaintiff the said sum of $600 which it agreed to pay, wherefore plaintiff brings this suit. Plaintiff alleges that said beneficiary certificate is the property of plaintiff. “(2) Plaintiff claims of the defendant $500 due on a policy of insurance or beneficiary certificate issued by the defendant to L. B. Dennis on the 21st day of November, 1917, whereby the defendant agreed that if the said L. B. Dennis, while -in good standing as a member of defendant, should die during the first year of his membership, it would pay, at his death, to plaintiff, bearing relationship of wife, the sum of $600. And plaintiff avers that the said L. B. Dennis, while in good standing as a member of said defendant fraternity, and during the first year of his membership, died, and that defendant has had due notice of his death, and has failed or refused to pay plaintiff the said sum of $600 which it agreed to pay, wherefore plaintiff brings this suit. Plaintiff alleges that said beneficiary certificate or policy is the property of plaintiff.” The complaint was demurred to, and the overruling of the demurrer is here assigned as error. The several counts of the complaint are similar to the complaint in Sov. Camp W. O. W. v. Ward, 196 Ala. 327, 71 South. 404, where this court held the allegations to be sufficient. [1-3] As to the specific grounds of demurrer: The complaint alleges ownership of the certificate in plaintiff. Appellant insists that the complaint should allege that the defend [644] ant was a fraternal organization, and therefore governed by other laws than those governing old-line insurance. Aside from the fact that, taken as a whole, the complaint, in itself, would meet this ground of demurrer, in that the fact that defendant is a fraternal organization may be well inferred from the statement and allegation, we do not think the complaint is demurrable on that ground, and defendant’s counsel cites no authority to sustain his contention. The contract sued on, whether in a fraternal or an old-line company, insured the life of plaintiff’s husband, for her benefit, against death, while deceased was in good standing. If there was any law, entering into and modifying the contract, by reason of defendants being other than a regular insurance company, that fact was the subject of defense, and not of original allegation and proof by plaintiff. The complaint alleged'that the deceased was in good standing at the time of his death, and was equivalent to an allegation that he had complied with all the necessary conditions of the contract of insurance. [4] The contract of insurance is that the company will pay in case of death, while the insured is in good standing. Violation of conditions attached to the contract are matters of defense, and are not subject of allegation in the complaint. [5, 6] The allowance by the court of an amendment to the complaint by changing >the amount claimed to $600, instead of $500, after the testimony had been gone into, is not governed by Code 1907, § 5369, but by section 5367, under which the trial judge has a -discretion, and in this instant appellant was not injured, in that the verdict was evidently based on the original amount claimed. [7, 8] After the pleadings had been settled, and after plaintiff had introduced her testimony and rested and defendant had examined three of its witnesses and on the second day of the trial, defendant offered and asked leave to file plea No. 3 as follows: “Eor further answer to the complaint, and each count thereof, separately and severally, the defendant says that on, to wit, November 10, 1917, the said L. B. Dennis made a written application to join the defendant order, which application is and constitutes a part of the contract sued upon. That said application contains the following provision and condition: .‘I hereby certify and agree and warrant that all the statements, representations and answers in this application, consisting -of two pages as aforesaid, are full, complete and true, whether written by my own hand or not, and I agree that any untrue statement or answers made by me in this application, or of the examining physician, or . any concealment of facts in this application, or to the examining physician, intentional or otherwise, my beneficiary certificate shall become void, and all rights of any persons thereunder shall be forfeited.’ “That on ¿he second page on said application, the following question and answer is contained: ‘Is your life insured?’ ‘No’ ‘If so, state the amount, when and company?’ Answer: ‘-.’ Said application also contains the following: ‘Eor the purposes of this application, I declare and warrant-the foregoing answers and statements to be correct.’ “The defendant alleges that said warranty is untrue in this: That said L. B. Dennis did have at 'the time life insurance in the Franklin Life Insurance Company in the amount of $1,000, wherefore said certificate sued upon is null and void, and defendant is not indebted to plaintiff.” The court asked defendant’s counsel: “Have you just found out those facts? to which counsel replied: “No, I’ve known it for some time; but I did not plead it because I did not expect the father of this man would swear that he did not know his son’s handwriting.” The court then refused to allow the filing of the amendment, and the defendant excepted. This was discretionary with the trial judge, which will not be disturbed, unless this court is clearly convinced that the action of the court was an abuse of discretion, amounting to a denial of justice. The plaintiff having introduced his evidence and rested his case, the refusal to -allow defendant to file plea 3 at the time offered rested within the discretion of the court, and in this case ,we cannot say that the discretion was abused. L. & N. R. R. Co. v. Wynn, 166 Ala. 413, 51 South. 976; Leader v. Mattingly, 140 Ala. 444, 37 South. 270. This ruling is not governed by Code 1907, § 5369, but by Code, § 5367. [9] A witness, who examined the body of deceased, at the place where found, together with the locus in quo, is not qualified as an expert in that sense as that he can give as evidence his opinion as to the cause of death. He may testify to the facts, but the jury must draw the conclusions. Sov. C. W. O. W. v. Ward, 196 Ala. 327, 71 South. 404. [10] The remaining question is the refusal of the court to give at the request of defendant in writing the’ general charge. Defendant insists that this ease comes within the rule laid down in the Hackworth Case, 200 Ala. 87, 75 South. 463. In that case the Supreme Court makes the statement that, “The direct and positive evidence shows that the insured shot himself intentionally,” while the facts in the' instant case are entirely circumstantial, with an evidentiary presumption in favor of plaintiff and the burden of proving suicide to the reasonable satisfaction of the jury resting on defendant. Under our practice the court would not have been authorized to direct a verdict. The refusal to give the general charge as requested was without error. We find no error in the record and the judgment is affirmed. Affirmed. [645] BRICKEN, P. J., being interested not sitting.