The action is on a benefit policy alleged to have been issued by the defendant society to the plaintiff's husband, Louis Tucker.
Defendant denies liability on the ground that Tucker had been suspended from membership for the nonpayment of dues for June, 1921, and so remained for more than three months, and that the policy sued on as a reinstatement policy never became effective for the reasons: (1) That the assured never furnished to the society a certificate of good health from the camp physician; (2) that he was not balloted on for reinstatement Dy the members of his camp; and (3) that he was not at that time in good health, or that his health became impaired within thirty days thereafter, he having died of tuberculosis in June, 1922, without recovering his health after June, 1921.
Defendant alleges also that the money paid to its local clerk as reinstatement dues was repaid to this plaintiff.
Plaintiff denies that the assured was in bad health, as charged, and seeks to avoid the effect of his failure to conform to the specified requirements of the laws of the society and the conditions of the policy, by alleging that the defendant society accepted the money paid as dues for reinstatement, and issued and delivered the policy to the assured with knowledge of his failure to first conform to the requirements specified, and therefore waived the conditions relied upon by defendant.
Although the pleadings are voluminous, a proper decision of the case on its merits rests upon a single question of fact: Did defendant, or its authorized agent, deliver the reinstatement policy to the assured in such manner, and under such circumstances, as to effectively waive the stipulated conditions to its valid operation?
It appears without dispute that the defendant society, upon receipt of the old lapsed policy from the local clerk, N. A. L. Jones, sent a new policy to Jones to be filled out by him and delivered to Tucker, in accordance with pertinent regulations, it must be presumed. Jones testified:
"After I filled out the policy and put the seal on it, he [Tucker] asked me to write his name. I told him I could not do that. He said he was shaky. Then I suggested his wife write, and she *Page 511 refused, and he wrote it himself. I told him as soon as I made return they were going to require a health certificate, but he talked like he was going to give a health certificate, but he said he didn't know whether our camp physician would give it — there was a little difference between them, and he didn't know whether he would sign a certificate. I told him the policy would not be effective until he gave a health certificate. He knew that. I told him they would call on him for a health certificate. I told him they would not accept his money unless he gave a health certificate, and he didn't give it."
This witness also testified that the money paid by Tucker was not for reinstatement, but was for dues in advance on the new policy, and that he did not send the money to headquarters.
This testimony by Jones was not disputed, nor in any way contradicted or impaired, and, if believed, it shows conclusively that the essential requirement of a health certificate before the policy could become operative, was not only not waived, but was expressly insisted upon at the time the policy was handed to Tucker.
Upon this predicate, defendant was entitled to the general affirmative charge, as duly requested, and its refusal was error to reverse the judgment.
The failure of the defendant, the Sovereign Camp, to return the old policy, which was functus officio, was without legal significance, and could not impose liability on the new policy, by estoppel or otherwise.
We do not consider other questions not affecting the merits of the case, other than to observe that the plaintiff should not have been allowed to testify that her husband, Louis Tucker, was continuously a member of the local camp until his death, a contested issue, involving a legal conclusion, which the witness was not qualified to declare.
Let the judgment be reversed, and the cause remanded for another trial.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.