Grand Lodge of Alabama, A. F. A. M. v. Goodwin , 204 Ala. 213 ( 1920 )

Originally the Grand Lodge of Alabama, A. F. A. M. (Colored), was named as the sole defendant. When the suit was brought, 1909, the so-called defendant was an unincorporated association and could not be sued as such. Moore v. Burns,60 Ala. 269. By amendment the names of several individuals were added as defendants, with the allegation that they, and others whose names were unknown to plaintiff, acted as the association originally named as defendant, and they appeared in defense. As for any question raised, there is no objection to this practice. If the plaintiff had been an unincorporated association, appearing in its association name only, and as such entitled to no recognition in the law courts, it may be that the original complaint would have afforded no basis for an amendment; but it seems that the rule is otherwise when such an association is made the party defendant. 30 Cyc. 27, 98. Our judgment is that there was no infraction of the rule discussed and applied in Rarden Mercantile Co. v. Whiteside, 145 Ala. 617,39 So. 576, where it was held that an entire change of parties defendant worked a discontinuance as to the defendant whose name was last brought in.

A deposition was taken before the amendment noted supra. This deposition would have been suppressed on timely motion. Henderson v. Hall, 134 Ala. 455, 32 So. 840, 63 L.R.A. 673. But there was no motion nor any objection to the introduction of the deposition, and hence no error.

There is no need to go into a detailed consideration of pleas 4, 5, 6, and 7, to which demurrers were sustained. The defense set up in these pleas was, without the requirement of unnecessary allegation, heard under plea 8. In fact, the only issue contested between the parties was stated in its simplest form in this last-mentioned plea, so that, if there was error in the rulings on pleas 4, 5, 6, and 7, it can avail appellants nothing.

Plaintiff, appellee, claimed to be the designated beneficiary of one-half of the policy, or benefit certificate, in suit. She claimed by designation of the insured, properly made known before his death to the association in which he was insured. She testified to nothing within the ban of section 4007 of the Code. She testified to a conversation with one Nelson, who was worshipful master of the lodge of which deceased had been a member, and to which it was necessary, it seems, to give notice of the change of beneficiary under which appellee claimed; her testimony tending to prove the receipt by Nelson of a letter constituting notice that insured had changed in part the beneficiary, but there was nothing in that contrary to the statute.

Secondary evidence was received, over defendants' objection, as to the contents of the letter which plaintiff claimed had been sent to Nelson. The letter, according to plaintiff's evidence, had been written and mailed, postage paid, to Nelson at his post office; but defendants denied possession or knowledge of it. Nelson was not a party to the cause; but he was present at the trial, and plaintiff should have shown an effort to have him produce it preliminary to evidence of its contents at secondhand. Mordecai v. Beal, 8 Port. 529; Laster v. Blackwell, 128 Ala. 143, 30 So. 663. But at a later stage of the trial, Nelson became a witness and denied receipt or knowledge of any such letter. This rendered harmless the error in admitting secondary evidence of its contents without proper preliminary proof.

The question as to whether the amount paid to Hattie Wright, widow of the insured, was in full of his certificate of insurance, was irrelevant to the inquiry whether one-half the certificate had been made payable by insured to plaintiff, who was his mother. If plaintiff was entitled to one-half the proceeds of the certificate, her right could not be affected by a transaction to which she was not a party.

The answer to the question made the subject of the sixteenth assignment of error was in the negative, and harmless to defendants.

The by-laws of the association required that every holder of a certificate of insurance should file a certificate designating the beneficiary; the form of the certificate in use showing that it was addressed to the worshipful master, wardens, and brethren of the lodge of which the insured was a member. We think there was no error committed when the court charged the jury, in effect, that notice (of a change of beneficiary) to the worshipful master of insured's lodge was notice to "defendant." Whether there was such notice in fact was left with the jury; it was in fact the only controverted issue in the cause.

The argument in support of the assignment of error based upon the overruling of defendants' motion for a new trial reiterates the alleged errors to which reference has been made, and in addition suggests that defendants were not shown to have been members of the association at or before the death of the insured. It is true that no question was asked of any witness on this point, and the contention here seems to be an afterthought; there having been no specific question on this point made in the motion. Defendants did, however, allege in their motion that the court had erred in refusing their request for the general charge. Whatever may be said as to the case of the individual defendants, other than H. C. Binford and H. C. Harris, the jury may have inferred from undisputed correspondence in evidence that the named parties were members of the defendant association, and as such liable in plaintiff's action. The general charge, therefore, in the comprehensive form requested, was refused without error; nor have the separate cases of the other individual defendants been presented by any separate assignments of error here or in the motion for a new trial. Having thus throughout made common cause with defendants against whom a verdict was warranted, these defendants, last referred to, cannot now have the benefit of a difference in their cases to which attention has never been called.

We have stated our consideration of all assignments of error deemed of sufficient importance to tolerate separate mention. The rest need no separate consideration.

Affirmed.

ANDERSON, C. J., and GARDNER and BROWN, JJ., concur.