The action is on a certificate of insurance, in which the defendant engaged to pay to the beneficiary named in the contract upon the death of the assured, conditioned upon his compliance with the requirements of the constitution and by-laws of the order, so as to keep the insurance alive until his death, and the questions litigated were whether or not there had been such compliance, and the amount plaintiff was entitled to recover. The plea of set-off asserted that certain extra premiums, which under the terms of the contract and by-laws of the order had accumulated, became a charge against the amount of the insurance and reduced the amount of the recovery. After the facts in respect to these accumulated premiums had been fully stated by the witness Yates, and shown by other evidence in the case, defendant's counsel asked the witness the following question: "If said policy was a good and binding claim on the defendant, what would be the net amount thereof?" The bill of exceptions shows that the court sustained an objection to this question, but does not disclose what, ifany, grounds were stated. Under the uniform decisions of this court, if this question was subject to any tenable ground, the court should not be put in error for sustaining the objection.
To my mind this question patently calls for the statement of the very conclusion that it was the province of the jury to draw — the amount of the plaintiff's recovery — involving some of the litigated facts, and that brings it within the rule of the following cases: Brandon v. Progress Distilling Co.,167 Ala. 365, 52 So. 640; Houston v. Elrod, 203 Ala. 41,81 So. 831; Standard Cooperage Co. v. Dearman, 204 Ala. 555,86 So. 537; Arnold Co. v. Gibson, 216 Ala. 317, 113 So. 25; Spooney v. State, 217 Ala. 224, 115 So. 308; A. G. S. R. R. Co. v. Hall, 105 Ala. 599, 17 So. 176.
When we go to the answer of the witness, it discloses this inherent vice. The witness calculates the interest on the amount of the set-off, without giving interest on the amount due to savings and gains or interest on the death benefit from the date of the death of the insured to the trial, and ascertains the amount of the liability as $764.66.
If the conclusion of the majority only affected the instant case, no great mischief would probably result, but it upsets and renders uncertain the law of evidence, and weakens the doctrine of stare decisis, "the mother of repose," which is intended to protect society from the uncertainty of fluctuating judicial decisions. Barrett v. Brownlee, 190 Ala. 613,67 So. 467; Allen v. Fincher, 187 Ala. 599, 65 So. 946; Snider v. Burks, 84 Ala. 53, 4 So. 225.
For these reasons I cannot agree to the reversal, and respectfully dissent.