National Council Junior Order United American Mechanics v. Thompson

• Decision Date: 08 May 1913
• Citation: 156 S.W. 132,153 Ky. 636
• Parties: NATIONAL COUNCIL JUNIOR ORDER UNITED AMERICAN MECHANICS v. THOMPSON. d
• Court: Kentucky Court of Appeals

156 S.W. 132

153 Ky. 636

NATIONAL COUNCIL JUNIOR ORDER UNITED AMERICAN MECHANICS v. THOMPSON. d

Court of Appeals of Kentucky.

May 8, 1913

Appeal from Circuit Court, Franklin County.

Action by Amanda Thompson against the National Council Junior Order United American Mechanics. From a judgment for plaintiff defendant appeals. Reversed and remanded.

Brown &amp Nuckols, of Frankfort, and Smith W. Bennett, of Columbus Ohio, for appellant.

Scott &amp Hamilton, of Frankfort, for appellee.

HOBSON C.J.

William Thompson was a member of the Junior Order United American Mechanics, a fraternal society which maintains a funeral benefit department. He joined the order on April 16, 1909, and was admitted to the funeral benefit department on November 6, 1909. He died in the year 1911, having paid all his assessments as they fell due. The order refused to pay to his beneficiaries the amount of the funeral benefit, $250, and this suit followed. The company defended the suit on the ground that William Thompson was engaged in the liquor business, and that a person engaged in this business was not eligible for membership in the funeral benefit department. The certificate which was sued on is in these words: "Junior Order United American Mechanics will pay to Capital City Council, No. 29, Junior Order United American Mechanics of Frankfort, state of Kentucky, for the legal dependent of William Thompson within thirty days from the receipt of the proof of his death the sum of two hundred and ($250) fifty dollars upon the condition that the said Capital City Council No. 29 is now and shall be at the time of the death of the said William Thompson in good standing in the funeral benefit department of the National Council Junior Order United American Mechanics of the United States of North America; that is to say, that it has paid all assessments due to the funeral benefit department at the time of the death of the said William Thompson and has complied with all laws, rules and regulations governing the funeral benefit department, and is in good standing with the National Council and State Council having jurisdiction over said council. Also, upon the further condition that the said William Thompson was not received to membership nor retained as a member in violation of the laws and decisions of the order, and that at the time of his death he was a beneficial member in good standing of said Capital City Council No. 29 and entitled to death benefits in accordance with the constitution and laws of that council and the State and National Council now in force or hereafter adopted prior to said death."

Section 1 of the by-laws provides for the creation of a funeral benefit department. Section 2 provides for its government. Section 3 provides: "The entire beneficial membership of any council of the Jr. O. U. A. M. in good standing with its State Council and with the National Council shall be entitled to membership in the funeral benefit department, but of the members of any council that may be admitted to membership in the funeral benefit department only such as possess the qualifications hereinafter provided shall be entitled to benefits thereof."

Section 4 provides for two classes of membership in the funeral benefit department. Section 5, regulating application for membership, provides: "Any council desiring to obtain membership in the funeral benefit department shall make application to the Secretary-Manager upon the blanks furnished for that purpose."

The blank furnished for that purpose, which is set out in the by-law, contains the following: "We hereby agree to make no claim on you for benefits upon the death of any brother who is not in good standing in the council at the time of his death or who is not entitled to death benefits according to the constitution and by-laws of this council, nor who may be sick or disabled at the time of admission of this council in the funeral benefit department, nor who is engaged in the liquor business, contrary to the laws of the order. *** We hereby agree that no benefits shall be paid where the deceased has been received to membership in violation of the laws and decisions of the order."

Section 9 is in these words: "No person shall be admitted to the funeral benefit department who is engaged in the manufacture or sale of malt, spirituous or vinous liquors as a beverage, either as proprietor or agent (except bona fide hotel keepers or druggists); and should any member of the funeral benefit department hereafter enter upon the manufacture or sale thereof, in either capacity aforementioned, he shall thereby, ipso facto, forfeit all rights of membership therein, and his certificate shall thereby become null and void and payment of assessments or dues thereafter shall in no manner affect such forfeiture."

The case was submitted to the circuit court upon the following agreed statements of facts:

"It is agreed between the parties that R. P. Thompson died on the ___ day of ___, and that afterwards William Thompson, plaintiffs' intestate, qualified as his administrator; that at the time of the death of R. P. Thompson he was the owner of a saloon located in Frankfort, Ky. and that said saloon, with its fixtures and stock, were a part of his personal estate, and was turned over to William Thompson, administrator; that thereafter William Thompson conducted said saloon as a part of the estate of R. P. Thompson, deceased, and as administrator; that he employed all the help about said saloon, bought all supplies therefor, paid for the same, but that he never at any time worked in said saloon, or was a barkeeper therein.

"It is agreed that at the time he made application for insurance in the defendant's order he was engaged in said saloon business as above indicated, as administrator of R. P. Thompson, deceased; that he never owned said saloon himself, nor owned any stock therein, nor did he ever work there; but that at said time and thereafter he bought all the supplies for said saloon, employed and discharged all the help about said place, in the capacity of administrator of R. P. Thompson, deceased; that after the expiration of the license which had been issued to R. P. Thompson prior to his death, the license was annually renewed in the name of William Thompson.

"It is agreed that the officers and members of Capital City Council No. 29 and the person representing the Capital City Council No. 29, who collected the assessments on said certificate of insurance, knew the connection that William Thompson had with the saloon of R. P. Thompson, deceased, and knew the same at all times when any and all assessments and dues were paid by reason of his being a member of said order; that when said assessments were remitted to the Grand Lodge of the subordinate lodge the officers and agents of the subordinate lodge, who remitted, knew that William Thompson was connected with the saloon of R. P. Thompson, as above indicated, but that none of the officers of the National Council Junior United American Mechanics had any actual knowledge of said William Thompson's said connection with the operation of said saloon until after his death. It is agreed that at the hearing the by-laws of the funeral benefit department attached to the answer of the National Council may be read in evidence."

On these facts the circuit court gave judgment in favor of the plaintiff. The defendant appeals.

The first question to be determined is: Was William Thompson engaged in the sale of malt, spirituous, or vinous liquors as a beverage, either as a proprietor or agent, within the meaning of section 9? It will be observed that by the by-laws no person shall be admitted to the funeral benefit department who is engaged in the manufacture or sale of malt spirituous, or vinous liquors as a beverage, either as proprietor or agent. R. P. Thompson died in March, 1908. William Thompson qualified as his administrator on March 12, 1908. The license under which the saloon was then conducted expired on April 30, 1908, and this license was renewed then and annually thereafter on April 30, 1909, 1910, and 1911. A person to whom another's estate is intrusted by law may, in his official capacity,...