The former appeal in the course of this litigation is reported in 206 Ala. 18, 89 So. 528. Since the court remains satisfied with the conclusions prevailing on that appeal, with respect to the major questions again reargued for appellant on the present appeal, it is not necessary to take further account of them, as, indeed, it is also unnecessary to repeat recitals there sufficiently made. The last trial was had on counts 4 and 6. The court gave the jury the general affirmative instruction, with hypothesis, in favor of plaintiffs.
Besides pleas seeking to bar recovery because the insured did not pay the higher rate applicable to members engaged in certain hazardous occupations — a regulation or exaction held on former appeal not binding this insured — the defendant interposed several pleas wherein it was, in substance, asserted, as upon provisions of sections of the constitution and laws of the order, that insured became suspended from membership in April, 1914, for his failure to punctually pay the March installment, and that he was never reinstated to membership, though paying April 18, 1914, the installment in default, because he omitted to give the certificate of good health required by the order; he being then in fact seriously diseased, and had been so advised by his physician. To such pleas, and in addition to general traverse of their averments, the plaintiff interposed special replications in which the following clause, in the original certificate of insurance "sued upon," issued in 1895, was set forth in avoidance of the matters asserted in such pleas:
"This certificate shall be incontestable after one year from date hereof, provided the Sovereign to whom issued has complied with all the requirements hereon." (Italics supplied.)
The replications of this class aver compliance by insured with "all the requirements" exacted by the certificate. These replications, to such pleas, were not subject to the grounds of demurrer interposed. If, as the replications aver, the quoted "incontestable clause" was in the certificate issued by defendant to Alford in 1895, and upon which the beneficiaries now sue, and if, as the replications aver, the member complied "with all the requirements hereon" (the certificate), and if, as the replications aver, Alford lived and so complied more than one year after April, 1914, the defendant's right to contest liability on the certificate, on the grounds asserted in the class of pleas mentioned, was concluded by the "incontestable clause" quoted in the replications. If this incontestable clause in the original certificate issued to Alford in 1895 was subsequently effectually avoided, or legally annulled, it was the defendant's obligation to appropriately assert that fact. This it undertook to do through the following rejoinder, numbered 2: *Page 380
"Defendant admits that said certificate contains the provisions set out in said replication, but says further that when said Alford was suspended as alleged in said plea the constitution of defendant, which is and constitutes a part of said certificate had been amended, and as amended contained the following provision: 'Section 68. When a beneficiary certificate has been in force for five consecutive years immediately preceding the death, while in good standing, of the member holding the same, the payment thereof shall not be contested on any ground other than that his death was intentionally caused by the beneficiary or beneficiaries, or by the hands of justice, or from the direct result of drinking intoxicating liquors or from the use of opiates, cocaine, chloral or other narcotic or poison, or shall due [die] while engaged in war except in defense of the United States of America.' Wherefore defendant says that the incontestable period of said certificate had been extended to five years and therefore the provision set out in said replication has no force and effect."
This ground of the demurrer to the rejoinder (2), if not others presently unnecessary to consider, justified the action of the court in sustaining the demurrer to that rejoinder:
"(7) Said rejoinder does not allege or show that said amendment [i. e. that quoted in the rejoinder] had or was intended to have any retroactive effect."
There is nothing in the amendment quoted in the rejoinder that indicates, much less affirms, an intent to eliminate from a theretofore existing certificate of insurance the "incontestable clause" set forth in the replications to which the rejoinder was addressed.
The "incontestable clause," set up in avoidance of the matter in the pleas to which they were applicable, was indisputably sustained in the evidence. The court was thereupon justified in giving, in favor of plaintiffs, the general affirmative instruction requested by them. In such circumstances, numerous other rulings assigned for error could not have been prejudicial to defendant, and, hence, assignments of that class are not considered. Bienville Water Co. v. City of Mobile,125 Ala. 178, 184, 27 So. 781; McConnell v. Free, 206 Ala. 83,89 So. 170, among others.
The judgment is therefore affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.
On Rehearing.