Opinion
6 Div. 777.
October 17, 1935. Rehearing Denied November 7, 1935.
Appeal from Circuit Court, Jefferson County; Gardner Goodwyn, Judge.
Rainey T. Wells, of Omaha, Neb., Wm. B. McCollough, of Birmingham, and Huey, Welch Stone, of Bessemer, for appellant.
The complaint is subject to the objection that it fails to set out or refer to any specific provisions of the Constitution and laws of defendant, and the court will not take judicial knowledge of same. Mortellaro Co. v. Atlantic Coast L. R. Co., 91 Fla. 230, 107 So. 528; American T. T. Co. v. Naylor L. Co., 190 Ala. 319, 67 So. 246; Alabama G. S. R. Co. v. Cardwell, 171 Ala. 274, 55 So. 185; Miles v. Montgomery, 17 Ala. App. 15, 81 So. 351; Weller Co. v. Camp, 169 Ala. 275, 52 So. 929, 28 L.R.A.(N.S.) 1106; Sibley v. Kennedy, 224 Ala. 354, 140 So. 552; Sovereign Camp, W. O. W., v. Batty, 227 Ala. 50, 148 So. 811; Code 1923, § 5321. A replication purporting to answer several pleas is demurrable where it is no answer to one of the pleas though good as to others. Birmingham Stove Range Co. v. Lawler, 11 Ala. App. 534, 66 So. 897; Matthews v. Farrell, 140 Ala. 298, 37 So. 325; Owensboro Wagon Co. v. Hall, 149 Ala. 210, 43 So. 71. Suspension of a member of defendant order or its local lodge for nonpayment of dues and assessments is self-executing. Sovereign Camp, W. O. W., v. Carrell, 20 Ala. App. 340, 101 So. 914; Sovereign Camp, W. O. W., v. Anderson, 133 Ark. 411, 202 S.W. 698; Kennedy v. Grand Fraternity, 36 Mont. 325, 92 P. 971, 25 L.R.A.(N.S.) 78; Grand Lodge v. Taylor, 24 Colo. App. 106, 131 P. 783; Barganier v. Knights of the Maccabees, 147 La. 409, 85 So. 57. There can be no reinstatement of a suspended member of a fraternal benefit association without knowledge on the part of the officers claimed to have reinstated the member of the member's suspension. Acceptance of delinquent dues by the local officer was not binding on the association. Sovereign Camp, W. O. W., v. Jones, 11 Ala. App. 433, 66 So. 834; Sovereign Camp, W. O. W., v. Eastis, 210 Ala. 29, 96 So. 866; Hardy v. Sovereign Camp, W. O. W., 17 Ala. App. 53, 81 So. 690; Yarbrough v. Sovereign Camp, W. O. W., 210 Ala. 188, 97 So. 654; Beiser v. Sovereign Camp, W. O. W., 199 Ala. 41, 74 So. 235; Sovereign Camp, W. O. W., v. Gay, 207 Ala. 610, 93 So. 559; Sovereign Camp, W. O. W., v. Allen, 206 Ala. 41, 89 So. 58; Woodmen of the World v. Maynor, 206 Ala. 176, 89 So. 750, 751; Sovereign Camp, W. O. W., v. Adams, 204 Ala. 667, 86 So. 737; Gen. Acts 1911, p. 713, § 20. After evidence taken, arguments concluded, and completion of the oral charge to the jury, it is too late to amend the complaint by adding an entirely new count. Code 1923, § 9513; King v. Gray, 189 Ala. 686, 66 So. 643; Tombigbee Val. R. Co. v. Howard, 185 Ala. 612, 64 So. 338; Huggins v. Southern R. Co., 148 Ala. 153, 41 So. 856; Townes v. Dallas Mfg. Co., 154 Ala. 612, 45 So. 696; Reed v. Ridout's Ambulance, 212 Ala. 428, 102 So. 906; Daniels v. Milstead, 221 Ala. 353, 128 So. 447; Fields v. Karter, 121 Ala. 329, 25 So. 800.
Etheridge Smithson and Ross, Bumgardner, Ross Ross, all of Bessemer, for appellee.
Facts which are, or which the law presumes to be, peculiarly within the knowledge of the other party, may be alleged with less certainty and particularity than would be otherwise necessary, and they may be even omitted entirely. Brittain v. Vickers, 209 Ala. 391, 96 So. 438, 439; Weller Co. v. Camp, 169 Ala. 275, 52 So. 929, 28 L.R.A.(N.S.) 1106; Brown v. Thomas, 202 Ala. 679, 81 So. 635; Alabama G. S. R. Co. v. Flinn, 199 Ala. 177, 74 So. 246; Louisville N. R. Co. v. Wilson, 162 Ala. 588, 50 So. 188, 193. An unauthorized or irregular act of the local clerk can be ratified by the Supreme Camp or its officers, and they may waive conditions for the society's benefit. Gen.Acts 1911, p. 713, § 20, does not apply to them. Sovereign Camp, W. O. W., v. Eastis, 210 Ala. 29, 96 So. 866; United Order of the Golden Cross v. Hooser, 160 Ala. 334, 49 So. 354; Mutual L. Ins. Co. v. Lovejoy, 201 Ala. 337, 78 So. 299, L.R.A. 1918D, 860; Woodmen of the World v. Alford, 206 Ala. 18, 89 So. 528; Sovereign Camp, W. O. W., v. Allen, 206 Ala. 41, 89 So. 58; Huggins v. Sovereign Camp, W. O. W., 221 Ala. 126, 127 So. 821; Sovereign Camp, W. O. W., v. Cox, 221 Ala. 58, 127 So. 847, 849; 45 C.J. 127, 132. Allowing amendments is within the discretion of the court. Code 1923, § 9513; Gaines v. Birmingham Ry., L. P. Co., 164 Ala. 6, 51 So. 238; Alabama Consol. Co. v. Heald, 154 Ala. 580, 45 So. 686; Dallas Mfg. Co. v. Townes, 162 Ala. 630, 50 So. 157; Crawford v. Mills, 202 Ala. 62, 79 So. 456.
Indebitatus assumpsit, by appellee, a member of one of appellant's subordinate lodges, against appellant to recover "modified disability benefits" alleged to be the sum of $375.48, due to plaintiff under defendant's system of insurance provided for in its constitution and laws, and evidenced by certificate or policy No. 46794R, issued by the defendant to plaintiff on July 24, 1912.
The complaint as last amended consists of three counts, each averring, in substance and legal effect, that the defendant had engaged and promised to pay plaintiff said modified disability benefits, upon his attaining the age of seventy years, if physically disabled; that plaintiff became seventy years of age on April 23, 1933, and said sum is due "him from the defendant under his said certificate number 46794R, of which the defendant has had notice and has refused to pay."
The appellant insists that each count of the complaint "is bad, indefinite and uncertain because it does not set out or refer to any specific section or provision of the Constitution, Laws and Bylaws, and the Court will not take judicial knowledge of the same."
Under the provisions of section 8452 of the Code 1923, the certificate, the charter or articles of incorporation, the constitution and laws of the society, the application for membership and medical examination signed by the applicant, and all amendments of the constitution and laws, not detrimental to the member or his status, or to which he may have expressly assented, constitute the contract between the parties. Beason v. Sovereign Camp, W. O. W., 208 Ala. 276, 94 So. 123.
It is permissible in pleading a contract to state its legal effect, and the averment that the sum claimed was "due" imports that the fact which matured the obligation to pay — plaintiff's attaining the age of seventy years, and his disability — occurred within the life of the contract. Doullut Williams v. Hoffman, 204 Ala. 33, 86 So. 73; American Nat. Ins. Co. v. Moss, 215 Ala. 542, 112 So. 110; Sovereign Camp, W. O. W., v. Hubbard, 217 Ala. 431, 116 So. 163.
The court's ruling on the demurrer to the several counts is not subject to appellant's criticism. Nor was error committed in allowing the amendment to the complaint, after the argument and the charge of the court. As before stated, the several counts of the complaint were, in substance, the same, and there was evidence tending to support the count added by amendment. Code 1923, § 9513; Martin v. Howard, 193 Ala. 477, 68 So. 982; Fields v. Karter, 121 Ala. 329, 25 So. 800.
Special pleas 3, 4, 5, and 6, interposed by the defendant, set up a defense that the plaintiff had forfeited his right to the benefits claimed, in that he had failed to pay the dues and assessments for the month of May, 1933, on or before the 1st day of June, as required by section 63 of the by-laws of the society.
Special pleas 7 and 8, to state the substance of their averments, aver that plaintiff, on June 13, 1912, made application for membership in the defendant's organization, and for the issuance of the certificate of insurance to him, upon which the suit is based, representing in writing in said application that the date of his birth was April 23, 1864; that defendant relied on said representation and was led to issue said certificate with plaintiff's age stated therein as 48 years, and to allow the plaintiff a cheaper rate for said certificate and the maintenance thereof in force than would have been allowed him if his age had been stated as 49 years; and that all the payments made by plaintiff to maintain said insurance were at the lower rate, and defendant had no knowledge or notice that the date of plaintiff's birth and his age were otherwise than set out in said application until he made application for said modified benefits in April, 1933, and therefore the plaintiff is estopped to claim otherwise than is set out in his said application, in order to maintain his rights under said contract. These averments clearly characterize pleas 7 and 8 as pleas of estoppel, precluding the plaintiff from showing that he was born in 1863, and not in 1864, although 1863 was the true date of his birth. Emerson-Brantingham Implement Co. v. Arrington, 216 Ala. 21, 112 So. 428; 21 C. J. 1247, § 258.
Special pleas 9 and 10 set up fraudulent warranties or representations as to plaintiff's age in procuring the issuance of the policy.
Issue was joined on the several special pleas without testing their sufficiency, and plaintiff undertook to meet the defenses set up therein by special replications 2 and 3.
There is an absence of affirmative averment in replication 2, that said application for reinstatement was accepted and plaintiff restored to membership by the defendant or its sovereign officers, with notice or knowledge of his previous suspension for nonpayment of dues and assessments. This replication sets out in hæc verba certain correspondence between plaintiff and defendant's officer of the Sovereign Camp and the financial secretary of the Local Camp. Conceding that this correspondence, in the light of the affirmative facts averred in the replication, warranted an inference that the officers of the Sovereign Camp, with knowledge of the fact that plaintiff had been suspended for nonpayment of dues and assessments, recognized plaintiff's right to said modified benefits, by treating the insurance as in force, nevertheless this would not render the replication sufficient as against the demurrer, as an answer to pleas 3, 4, 5, and 6. Ingalls Steel Products Co. v. Foster Creighton Co., 226 Ala. 122, 145 So. 464; Protective Life Ins. Co. v. Cole, 230 Ala. 450, 161 So. 818.
Replication 3 was sufficient as to pleas 3, 4, 5, and 6, but was insufficient and subject to the demurrers as to pleas 7 and 8. Taking the averments of said pleas as true, plaintiff had maintained his status as an insured member for more than twenty years, on the assertion that he was born on the 23d of April, 1864, and was forty-eight years of age when he joined the subordinate lodge, in consequence of which he had received protection by paying a less rate than he would have been required to pay if he had represented that he was born in 1863. Nothing short of averring that said representation was made innocently, and a tender of the balance due at the higher rate and acceptance thereof, with knowledge, would answer the pleas of estoppel.
Our judgment, therefore, is that the court erred in overruling the defendant's demurrers to replications 2 and 3, and for this error the judgment must be reversed.
We are not in agreement with the defendant's contention that the provisions of section 63 of the defendant's by-laws, interpreted with the provisions of section 60, require the member to continue the payment of dues and assessments beyond the time his right to the benefits under the contract matured. As before stated, the fact that matured the contract and entitled the plaintiff to the modified benefits was his attaining the age of seventy years, and his disability, during the life of the contract, and if he maintained the contract in force by paying the dues and assessments for the month in which he reached his seventieth birthday he was not required to pay further if he then elected to surrender his certificate and accept the modified benefits.
We deem it unnecessary to treat the other questions argued as they may not arise on another trial.
For the error noted, let the judgment be reversed.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.
On Rehearing.
Appellee insists that the defects in his replication 2, stated in the opinion, were not pointed out by specific grounds of demurrer, as required by the statute, section 9479 of the Code 1923. Grounds of demurrer 41, 42, 43, and 44 aptly raise the question, and the replication was also subject to the objection pointed out by grounds 15, 34, and 37.
Pleas 7 and 8 are not grounded on a forfeiture, but they assert, in the circumstances set forth therein, that the plaintiff is estopped to plead and prove what he now contends is the true date of his birth in order to mature his rights under the contract, as of April 12, 1933. Therefore, the authorities cited by appellee dealing with forfeitures and the waiver thereof shed no light on the question.
Our judgment is that the application for rehearing is without merit, and should be overruled. It is so ordered.
Application overruled.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.