Opinion
6 Div. 676.
February 1, 1923.
Rehearing Denied May 10, 1923.
Appeal from Circuit Court, Blount County; O. A. Steele, Judge.
C. H. Roquemore, of Montgomery, for appellant.
It was error to allow the question to the witness Hughes whether the dues of the Sovereign Camp for March, 1918, were paid by the local camp. Woodmen of the World v. Alford, 206 Ala. 18, 89 So. 528. Counsel discusses the several points raised, but without citing additional authorities.
Ward, Nash Fendley, of Oneonta, for appellee.
As supporting the correctness of the various rulings of the trial court, counsel cite the decision on former appeal. 206 Ala. 176, 89 So. 750.
Suit by appellee against appellant for recovery upon a benefit certificate of insurance issued upon the life of Eldridge W. Maynor. This is the second appeal in this cause. W. O. W. v. Maynor, 206 Ala. 176, 89 So. 750.
Some few of the questions here discussed were presented and determined upon the former appeal, and need no further discussion. It was pointed out on that appeal that plea 2 was in effect the general issue. It is quite plain, therefore, the defendant could have suffered no injury from the action of the court in striking this plea. Pleas 3 and 9 were held defective on the former appeal. There was therefore no reversible error in sustaining the demurrers thereto. Nor was there error in the court declining to strike the fifth count of the complaint.
The certificate from the War Department as to the date and manner of the death of Eldridge Maynor was held admissible upon the former appeal, and we see no occasion to disturb that ruling.
Defendant offered as a witness one Hughes, who was during the years 1917 and 1918 clerk of the local camp of the Woodmen of the World, in which the insured had his membership. He testified as to the assessments made by insured, as well as the amount of such assessments; and some of his evidence tended to show that insured had been delinquent in some of the monthly payments. Upon cross-examination the plaintiff was permitted to ask this witness whether or not the dues and assessments to the Sovereign Camp for some of these months were paid by the local lodge when the same became due, and also whether or not the local lodge had paid the insured's assessment to the Sovereign Camp for some of these months. The plaintiff was also permitted to ask this witness on cross-examination if on June 25, 1918, which was the date the insured met his death by accident, he was due any assessments or dues, to which the witness replied that everything had been paid. This witness was the officer of the local camp, and for the purpose of forwarding these dues and assessments was acting for and in behalf of the Sovereign Camp. His evidence discloses uncertainty as to the exact date of the payment of the dues and assessments of the insured, and, in view of the issue of forfeiture injected into the case by the defendant's pleadings, and in further view of the fact these questions were asked upon cross-examination, we find no error in these rulings of the court.
The laws and constitution of the defendant organization were offered in evidence, and the question asked witness Hughes upon cross-examination as to the amount of special assessment due by insured by reason of his being an officer in the army called for nothing different from that set forth in the laws of the order. The plaintiff was also permitted upon further cross-examination of this witness to ask if the insured was ever suspended before his death. Plaintiff had propounded interrogatories to the defendant, which were answered and duly sworn to by one Yates, the sovereign clerk of the defendant order, and these answers had been introduced in evidence, showing that on June 25, 1918, the insured was in good standing in the order. Defendant had therefore solemnly admitted that the insured was in good standing, and the foregoing question to the witness who was clerk of the local lodge at the time only called for collective evidence of that which defendant had thus admitted. Pretermitting any consideration as to the correctness vel non of the ruling of the court upon this question, we are of the opinion that in no event could the answer under these circumstances work any prejudice to the defendant.
Upon redirect examination of the witness Hughes the defendant requested the court to permit the witness to go to his home, where was a certain book, and bring it into court. The court declined to suspend the hearing for this purpose, to which defendant duly excepted. There had not been issued for this witness a subpœna duces tecum, but counsel merely requested that he bring the book into court; nor does it appear that he had made inquiry previous to a re-examination of this witness as to whether or not the book was available. This was a matter resting largely within the discretion of the court, and no reversible error was shown.
Upon further redirect examination the witness Hughes was shown a stub book of receipts, the receipts having been torn out, and defendant offered the stub of a receipt which was issued on July 2d, to the introduction of which plaintiff's objection was sustained. The question as to the introduction of evidence of this character is found discussed in McWhotter v. Tyson, 203 Ala. 509, 83 So. 330, and Bolling v. Fannin, 97 Ala. 619, 12 So. 59. In no event, however, could error be predicated upon this ruling of the court in the instant case, as there was no proof as to the genuineness of the entries or knowledge of the contents thereof by the witness, nor, indeed, was it made to appear who made the entries upon the stub. What we have said with reference to other assignments of error suffice as an answer to the action of the court in overruling defendant's objection to the question presented in assignment of error numbered 28.
The regular session and legislative body of this association were held in Atlanta in July, 1917, at which time some of the by-laws were amended, and the constitution and by-laws recodified. It was then provided that the constitution, laws, and by-laws should become effective on and after October 1, 1917, except as stated in the laws. Section 43 of the constitution and by-laws was amended. This section had reference to hazardous employment or occupation, and an additional assessment therefor, with a proviso, however, that all members, officers, and enlisted men now in good standing in the society, enlisted in the army or navy of the United States, shall be exempt from the additional premium required, and other provisions followed not necessary here to mention, concluding with the words, "and provided further, that this proviso shall take effect immediately upon its passage." The trial judge in his oral charge to the jury stated that section 43 was in effect at the time of the death of the insured, and that it went into effect during the month of July, 1917. Whatever may be said in regard to the whole of section 43, we think it clear that that portion pertinent to this case, as above disclosed, did become effective in July, 1917, and that the defendant has therefore suffered no injury by this language of the oral charge.
Counsel for appellant also complain that the trial court was in error in instructing the jury that, should they find for the plaintiff, they should calculate interest from 60 days after proof of death was filed. It is insisted that no interest could be charged within 90 days from the receipt of the proof of death under the language of the certificate and by-laws of the order, and that in fact there was no proof of death. We are of the opinion, however, that the evidence was sufficient for submission to the jury upon the question of the proof of death, and we find that at the time of this exception counsel stated to the trial court that the defendant excepted to that part of said charge "because we say no proof of death has ever been furnished." The only ground therefor stated in open court, for which exception was reserved, being without merit, a consideration of the other ground mentioned is rendered unnecessary.
There was another general objection to the charge of the court upon the ground sufficient instructions had not been given the jury as to the numerous defenses injected into the case by the defendant's pleas. An objection of this character cannot avail the defendant; his remedy being for the request of special instructions. The questions presented by these pleas were for the jury's determination, and the affirmative charge was properly refused.
It is also argued that the affirmative charge was due defendant for a variance as to the description of the policy of insurance and the proof, a matter easily remedied by amendment. Without conceding any variance appears, the question is not to be presented merely by request for the general charge. Circuit court rule 34, 175 Ala. xxi; West v. Spratling, 204 Ala. 478, 86 So. 33.
The several assignments of error insisted upon by counsel for appellant have been considered, and, no reversible error appearing, the judgment appealed from will be here affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.