Brotherhood of Locomotive Firemen & Engineers v. Milner

ANDERSON, C. J.— (1) The defendant’s special plea 7, if not otherwise faulty, was bad for setting up [76] the contents of the constitution of the order as a part of the insurance contract, without the averment that the same was plainly expressed in the policy, as is required by section 4579 of the Code of 1907. This section applies to all insurance policies, whether issued by a benevolent society or an old-line insurance company. — National Union Co. v. Shery, 180 Ala. 627, 61 South, 944. It may be true that the act of April 24, 1911 (Acts 1911, p. 700), removes fraternal benefit societies from the influence of this statute as it appears in the Code of 1907, but said act does not apply to this policy, which was issued several years prior to the adoption therof.— Sherry’s Case, supra. The trial court did not err in sustaining the plaintiffs demurrer to plea 7. While this cause was tried upon several special pleas, replications thereto, and rejoining No. 2 to said replications, the only issue to be passed upon in determining whether or not the defendant was entitled to the general charge is proof vel non of said rejoinder. The special pleas do not deny the policy of insurance, but set up, in effect, a forfeiture of same for nonpayment of dues, and negative a reinstatement or renewal of the policy after said forfeiture. The replications deny the nonexistence of the insurance contract at the death of the insui*ed, and, while admitting the default in the payment of certain dues, which would operate as a forfeiture, set up facts showing that the forfeiture was waived by a subsequent receipt and retention of the premiums by one with authority to bind the defendant. (2) The general issue was not interposed to the replications, and the only rejoinder submitted to the jury, No. 2, seeks to avoid the replications by the facts that the insured was in failing health when the arrears were remitted, and which fact was known to those acting [77] for him and was not known to the lodge or its agent, Lowe, and that prior to the death of the insured, Green, acting as the agent of the insured, and within the scope his authority, made demand for the return of the premiums and received same. It will he observed that these facts are in the conjunctive and not in the alternative, and in order for the defendant to be entiled to the general charge, the proof must have established each of the conjunctive averments bepond dispute. It is sufficient to say that it was a question for the jury as to whether or not the insured was in such failing health as was contemplated by the policy, and whether or not it was known to him and his brother when remitting the premiums and was unknown to the defendant’s agent when he received and retained same. Nor does it appear without dispute that Greene had the authority to collect these premiums and to waive the rights of the insured by accepting same. Greene said: “I was not empowered by Mr. Milner to collect this $42; he never did tell me t<5 collect it, and I do not know that he .gave me any authority to act in the matter at all; Mrs. Milner asked me to get it straightened up.” The jury could well infer that if Mrs. Milner had authority in the matter, she merely authorized Greene to look into the matter and get the receipts and see that the policy had been properly reinstated and did not appear lapsed upon the records of the order. The trial court did not err in refusing the defendant’s general charge as to the whole complaint, or as to the different counts thereof separately. Moreover, the charges as to the respective counts were in bad form.— Goldstein v. Leake, 138 Ala. 573, 36 South. 4458. (3) There was no error in refusing the defendant’s requested charge 11. If not otherwise bad, it was calcu [78] lated. to mislead the jury to the belief that the plaintiff could not recover, if those seeking to reinstate the insured failed to report the condition of his health— whether he was in failing health or not. At most, it was only incumbent upon them, under the issues upon which the case was tried, to report that he was in failing health if they knew it. (4) While charge 6, refused to the defendant, meet's the specific defect discussed in reference to charge 7, it pretermits the last conjunctive averment in the rejoinder, and requires a verdict for the defendant upon proof of only a portion of the issue presented by said rejoinder. (5) Defendant’s refused charge 12, if not otherwise bad, seeks to defeat the plaintiff’s recovery upon issues not raised by the pleading. (6) Charge 13, refused to the defendant, invaded the province of the jury, and was also subject to the same vice suggested as to charge 6. (7) Charge 7 hypothesizes only a part of the issues presented by the pleading, and requires proof of the first, part of the defendant’s rejoinder merely. (8) There was no revei’sible error as to the oral charge of the court relative to the payment of $10, which is the only exception to the oral charge suggested or insisted upon in brief of counsel. (9) The trial court saw and heard the witnesses, as did the jury, and according to the often repeated rule of this court the refusal to grant a new trial will not be disturbed unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince us that, it Js unjust and wrong. — Cobb v. Malone, 92 Ala. 630, 9 South. 738. We are not prepared [79] to say that the verdict was unjust and wrong, or contrary to the great weight of the evidence. The judgment of the city court is affirmed. Affirmed. McClellan, Sayre and Gardner, JJ., concur.