Opinion
7 Div. 192.
October 26, 1922.
Appeal from Circuit Court, Cleburne County; A. P. Agee, Judge.
Merrill Jones, of Heflin, for appellant.
Count 4 of the complaint was good. 7 Ala. App. 255, 60 So. 1006. Pleas 2 to 12 were bad as against plaintiff's demurrer. 132 Ala. 640, 32 So. 733; Acts 1919. p. 118; 204 Ala. 210, 85 So. 762; 118 Va. 329, 87 S.E. 581. Ann. Cas. 1918D, 1002; 201 Ala. 687, 79 So. 259; 195 Ala. 263. 70 So. 768; 31 So. 809. Replications 2 to 11 were sufficient. Authorities, supra; 77 Ala. 210; 55 Hun, 606, 7 N.Y. Supp. 847; 94 Ill. App. 117; 107 N.Y. 292. 14 N.E. 271; 84 Ala. 106, 4 So. 36; 13 Ala. App. 524, 69 So. 410; 86 Ala. 189, 5 So. 500; 130 Ala. 536, 30 So. 488, 54 L.R.A. 749, 89 Am. St. Rep. 55; 89 Me. 266, 36 A. 389; 56 Am. St. Rep. 412; 88 Minn. 423, 93 N.W. 608, 97 Am. St. Rep. 532, There being a conflict in the testimony, the affirmative charge should not have been given. 203 Ala. 636, 84 So. 810; 81 So. 246; 204 Ala. 210, 85 So. 762.
C. H. Roquemore, of Montgomery, for appellee.
The beneficiary has no right to collect the $100 for a monument. 31 So. 809; 80 Miss. 546, 32 So. 4. The certificate issued upon the faith of the truthfulness of said application, and a lower rate of premium given, was void, if the statement was untrue. 197 Ala. 541, 73 So. 97.
The court, upon request, gave general affirmative instruction for the defendant, appellee, in appellant's action on a benefit certificate, payable to appellant, issued in September, 1917, by the defendant, insuring the life of L. T. Beason who died of a form of cancer on April 9, 1919.
The first amendment of the complaint — effected by substitution of three counts for the original complaint — included, along with a claim on the "policy," a claim for $100 "towards the erection of a monument to the memory of" the insured. Aside from the ground of demurrer taking the objection of misjoinder of causes of action in one count, demurrer was not appropriate to test the sufficiency of the claim for $100, since only in exceptional cases will demurrer lie to a part of a count. Ansley v. Bank, 113 Ala. 477, 478, 21 So. 59, 59 Am. St. Rep. 122.
As for the objection of misjoinder, the counts do not on their face disclose that the cause of action based on the "policy" was a distinct cause of action from that declared on in respect of the $100 towards the erection of a monument. For aught that appears from the averments of these counts, the agreement to pay the $100 was expressed in the "policy" insuring Beason. The fourth count separately claimed the $100 in this form:
"Count 4. And the plaintiff claims the other, further, and additional sum of $100, which the defendant agreed in writing as a part of the condition of said policy to pay, in the following language, to wit: 'There shall also be paid the sum of one hundred dollars for the erection of a monument to his memory [meaning the memory of L. T. Beason, deceased], as provided in the constitution and by-laws of the society' — and that said amount is past due and unpaid."
The judgment entry recites that demurrer to count 4 was sustained. There is no demurrer to count 4 in the transcript. The demurrers to counts 1, 2, and 3 of the amended (substituted) complaint were filed September 8, 1920; and count 4 was filed the next day, September 9, 1920. In view of the phrase quoted from the "policy" in count 4, wherein provisions in the order's laws are specifically made an element of the definition of the obligation to pay the $100 towards a monument, it cannot be affirmed that count 4 was not demurrable on any ground; and hence, in the absence of the demurrer to count 4, error cannot be predicated of the action of the court in sustaining demurrer to count 4. When reference is had to appropriate provisions in the order's constitution and by-laws, set out in the evidence and mentioned in count 4, it appears that neither the insured nor his beneficiary was promised or assured the payment of this monument fund; the stipulation being that the order would pay that amount to the contractor erecting the monument. W. O. W. v. Burgess (Miss.) 31 So. 809; W. O. W. v. Woodruff, 80 Miss. 546, 32 So. 4.
Thirteen pleas were interposed. As to pleas 1 to 12, inclusive, plaintiff's demurrers were overruled. The single assignment of error on this feature of the case is this:
"The court erred in overruling plaintiff's demurrers to defendant's pleas 2 to 12, inclusive."
This assignment, thus jointly assailing the action of the court, cannot avail appellant if any one of the pleas was not subject to the plaintiff's demurrer. Jordan v. Rice, 165 Ala. 650, 51 So. 517; Roach v. Wright, 195 Ala. 333, 70 So. 271.
Whatever may be thought of some of them, all of the pleas were not bad. Plea 8, reproduced in the report of the appeal, will serve as an illustration. This plea set up breach of warranty, in this, that in the application the applicant made untrue answer as to the date of his birth and age; that he was in fact older than his answer disclosed; and that by reason of this untrue statement he was assessed at a monthly rate materially less than he was really entitled to. The plea was sufficient under the authority of Ala. Gold Life Ins. Co. v. Garner, 77 Ala. 210. In 1 A.L.R. 463 et seq., the annotators have collected the decisions treating the subject. According to the established rules of this court, the appellant can take nothing under the joint assignment of error quoted ante.
Replication 1 to plea 2 was erroneously stricken on defendant's motion. In consonance with its view of the "policy's" provisions with respect to the existing "good health" of the insured at the time of actual delivery of the "policy," the defendant averred that insured was not then in "good health." The replication, traversing the pith of the plea, alleged the insured was in "good health" at the time averred in the plea. It was, in essence, a general replication, casting the burden of proof on the defendant under its plea 2, and should not have been stricken. Miller v. Johnson, 189 Ala. 354, 66 So. 486.
The assignment of error with reference to the action of the trial court in sustaining defendant's demurrers to replications 2 to 11, inclusive, is likewise joint. If any one of these replications was insufficient on demurrer, the assignment cannot avail appellant.
Replication 2 was addressed to plea 3 only. Plea 3 averred breach of warranty, imported by the terms of the application, consequent upon applicant's statement in the application "that he did not have or ever had had cancer or tumor," and that the statement was untrue, in that at the time applicant was afflicted with "cancer or tumor." Replication 2 read:
"(2) And in reply to defendant's plea 3 the plaintiff says that on or about the 5th day of September, 1917, the said L. T. Beason did not have cancer or tumor, so far as he had any knowledge of; that on said September 5, 1917, the said L. T. Beason was in good health so far, and had not consulted any physician on account of his health, and was not advised and did not know that he was suffering from any symptoms of any disease that might impair his health."
The second ground of demurrer to this replication — the only other ground was general — was that "it is immaterial that said Beason did not know that he had cancer at the time he made the warranty, as alleged in the plea." As appears, the demurrer confined its criticism to the immateriality of Beason's want of knowledge of his affliction with cancer; whereas both the plea (3) and the replication (2) thereto denied Beason's knowledge of his affliction with tumor, which growth is not necessarily cancerous in any degree. The court erred in sustaining the demurrer to replication 2 to plea 3; so, notwithstanding the absence of knowledge or notice on the part of applicant of his affliction with either cancer or tumor, or the absence of manifestations thereof discovered by him or by a physician consulted that was not necessary to effect a contradiction of the fact, made a warranty in the application and in the contract of which the application was a part, that he had neither "cancer nor tumor" at the time he applied for membership and the insurance. 1 Bacon's Life Acci. Ins. (4th Ed.) § 288.
On like considerations, though differently projected, the court erred in sustaining the demurrer to replication 3 to plea 4. The demurrer's only ground, aside from a general ground, pointed a criticism that was applicable only to a part of the replication (3), the replication also carrying the express averment that applicant was not afflicted with "cancer or tumor," in denial of the allegation that he was so afflicted when the application was made.
Replication 4 was addressed to plea 5. This plea predicated a breach of warranty upon the denial in the application that the applicant consulted a physician or had been examined by a physician during the preceding five years, and averred the applicant had consulted or been attended by a physician "for some disease, but what disease is unknown to this defendant." The replication was as follows: That Beason "had not been attended by and had not consulted any physician for any disease unknown to defendant which might tend to shorten life or increase the insurer's risk." The demurrer pointed out the immateriality of the replication's concluding averment. The replication was demurrable on the ground taken. 1 Bacon, § 284, note 386; 25 Cyc. pp. 816-818. The warranty averred in plea 5 was not dependent upon the character or quality of the disease or the cause for the attendance or consultation of a physician.
Plea 6 predicated an averment of breach of warranty upon the applicant's untrue answer in the application to this question: "Do you drink wine, spirits, or malt liquors?" The answer was "No." The plea averred that he did in fact drink such liquors "from time to time." Replication 5 replied that the applicant did not drink the liquors mentioned "excessively or intemperately * * * such as would increase the insurer's risk at the time the said benefit certificate was issued or application therefor made." The demurrer objected, in substance, that a breach alleged in the plea (6) was consummated notwithstanding the drinking was not intemperate or excessive, increasing the risk. For the purpose of passing upon the demurrer, the sufficiency of this replication's averments depends upon the scope and effect of the warranty alleged in plea 6. The scope and effect of the question and answer, as warranties, are subject to construction. The question imported no more than an inquiry as to the habitual, not the occasional, consumption of the liquors mentioned. Van Valkenburgh v. American, etc., Co., 70 N.Y. 605; Mutual Life Ins. Co. v. Simpson (Tex.Civ.App.) 28 S.W. 837, 839, citing other authorities; 1 Bacon, § 285, p. 545. Had the replication confined its averment to a denial of applicant's habitual, not occasional, consumption of the liquors mentioned in the question, rather than an allegation denying such intemperate or excessive consumption as increased the risk, the replication would not have been subject to the demurrer.
Replication 6 was addressed to plea 7. Plea 7 — similar in nature, though not so full as plea 8, to which reference has been hereinabove made — asserted a breach of warranty with respect to the date of applicant's birth. It averred that in the application he gave December 4, 1876, as the date of his birth; whereas the true date of his birth was December 4, 1875, a year earlier. Replication 6 to this plea (7) was as follows:
"(6) The plaintiff in reply to defendant's plea No. 7 states that on the 5th day of September, 1917, when the said L. T. Beason's application was made to join defendant and for said benefit certificate, that W. H. Morrison, who was the clerk of the Camp No. __________ of Cleburne County, Ala., of the Sovereign Camp of the Woodmen of the World, filled out or had filled out the application of said L. T. Beason; that said Morrison asked the same L. T. Beason the date of his birth, whereupon the said L. T. Beason stated December 4; that said Morrison asked the said Beason his age, whereupon the said Beason answered 41 years; that said Morrison asked the said Beason the year in which he was born, whereupon the said L. T. Beason stated he did not remember, when the said Morrison said he would figure it out and see for himself, which he did, and that the result of said Morrison's findings as to his figures were not read over to the said Beason; that in writing down the figures which the said Morrison made or had made he was acting as agent of the defendant, and not of L. T. Beason, and the said defendant is thereby estopped to complain at the mistake made on account of any mistake as to the age of the said L. T. Beason."
The replication was subject to the demurrer. The warranty averred in plea 7 was, according to the terms employed in the application, effective without reference to the person writing in the answer. The replication did not aver Morrison's possession of authority as agent to bind the order or to alter its regulations. Woodmen, etc., v. McHenry, 197 Ala. 541, 73 So. 97.
The act approved February 17, 1919 (Gen. Acts, pp. 118-119), is without application to the contract of insurance here declared on, which was consummated in September, 1917, two years prior to its enactment. The act of 1919 is not a procedural statute. Its effect is upon the contract itself. Its operation is not limited to remedy for enforcement. It can only apply to contracts entered into subsequent to its enactment. Replications A and B, drawn with a view to availing of provisions of the act of 1919, were inappropriate.
Upon the issues (a) whether the true date of applicant's birth was December 4, 1876, or 1875, and (b) whether the applicant was afflicted with cancer when the application was made, and (c) whether at the like time the applicant was in the habit of drinking one or more of the liquors specified in the pleading, the evidence, as well as inferences therefrom, was not conclusive; and the court erred in giving general affirmative instruction at defendant's instance.
There was a presumption that the applicant gave, in the application, the true date of his birth. Ala. Gold Life Ins. Co. v. Mobile, etc., Co., 81 Ala. 329, 331, 1 So. 561.
The certified copies of the constitution and by-laws were properly admitted in evidence. Gen. Acts 1911, § 8, p. 703.
The judgment is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.