Nuetzel v. Travelers' Protective Ass'n

• Citation: 183 S.W. 499,168 Ky. 734
• Parties: NUETZEL v. TRAVELERS' PROTECTIVE ASS'N. [a1]
• Decision Date: 29 February 1916
• Court: Court of Appeals of Kentucky

183 S.W. 499

168 Ky. 734

NUETZEL v. TRAVELERS' PROTECTIVE ASS'N. ^[a1]

Court of Appeals of Kentucky.

February 29, 1916

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Suit by Frederick C. Nuetzel against the Travelers' Protective Association. From a judgment dismissing his petition plaintiff appeals. Reversed, with directions.

Benj. F. Washer, of Louisville, for appellant.

Wehle &amp Wehle, of Louisville, for appellee.

THOMAS J.

The appellee (whom we shall hereafter call defendant) is a mutual benefit association, incorporated under the laws of the state of Missouri, and on the 27th day of February, 1902, it issued to the appellant (whom we shall hereafter refer to as plaintiff) a certificate of membership to the association which by its terms entitled the plaintiff as such member "to all the benefits accruing from such membership," the certificate being as follows:

"T T

P A P A

The Travelers' Protective Association of America, by this certificate of membership, certifies that Frederick O Nuetzel, of Louisville, Kentucky, is a member of the Travelers' Protective Association of America and is entitled to all the benefits accruing from such membership, under the provisions of the constitution and by-laws of this association, subject to the conditions printed on the back hereof, and the application of membership, all of which are made a part of this certificate.

Benefits in case of death payable to Clara D. Nuetzel his wife.

In witness whereof, this association has caused this certificate to be signed by its president and secretary under the seal of the association, at St. Louis, Mo., this twenty-seventh day of February, A. D. 1902.

[Seal.] Sam R. Jones, President."

The rules, or conditions, printed on the back of the certificate, are as follows:

"The member hereby agrees that the following rules shall be observed: That the Travelers' Protective Association of America shall not be liable for injuries accrued by a member in occupations more hazardous than specified in his application for membership, or in case of injuries, fatal or otherwise, wantonly or intentionally inflicted upon himself, while sane or insane, or in case of disappearance, or injuries of which there is no visible mark upon the body (the body itself not being deemed such a mark in case of death), or in case of injury, disability or death happening to the member while intoxicated, or in consequence of his having been under the influence of any narcotic or intoxicant, or death or disability when caused wholly or in part by any bodily or mental infirmity or disease, dueling, fighting, wrestling, war or riot, injury resulting from an altercation or quarrel, unnecessary lifting, voluntary overexertion (unless in a humane effort to save human life), voluntary or unnecessary exposure to danger, or to obvious risk of injury, or by unintentional injuries inflicted by the member of any other person, injury received either while avoiding or resisting arrest, while violating the law or violating the ordinary rules of safety of transportation companies, or riding on a locomotive, or to cases of injury caused by the diseases of epilepsy, paralysis, apoplexy, sunstroke, freezing, orchitis, hernia, lumbago, vertigo or by sleepwalking, voluntary inhalation of any gas or vapor, injury, fatal or otherwise, resulting from any poison, or infection, or from anything accidentally or otherwise taken, administered, absorbed or inhaled, disease, death or disability resulting from surgical treatment (operation made necessary by the particular injury for which claim is made and occurring within three calendar months from the date of accident excepted).

Any advisory surgeon, physician or other authorized representative of this association shall be allowed to examine the person or body of an injured member as often as may be necessary, in regard to any alleged injury or cause of death, and a refusal to allow such examination shall forfeit any and all claims under this certificate.

Beneficiaries can be changed only on application to the secretary at St. Louis.

Any member meeting with an accident must notify the state secretary of the division of which he is a member and the national secretary immediately of said accident, giving full particulars of same and name of attending physician. In case of failure to so notify, except because of unconsciousness or physical inability, the member shall forfeit all rights to insurance benefits."

It will be observed from a reading of the certificate and the printed rules on the back thereof that the defendant, among other things, promised the plaintiff, as the holder of his membership certificate, to pay to him some benefits in case he sustained injuries by accident of a certain prescribed nature, and furthermore agreed to pay his beneficiary named in the certificate some amount of money upon the death of the plaintiff, the beneficiary named being his wife. There is no fixed amount, either in the face of the certificate or the printed rules on the back of it, of what the accident benefits should be, nor is there, in either the face of the certificate or the printed rules on the back of it, any fixed sum that would be due to his beneficiary in case of his death. These items are to be ascertained exclusively, as stated in the certificate "under the provisions of the constitution and by-laws of this association."

On April 13, 1913, the plaintiff sustained an accident by falling from a ladder, by which his left leg and the kneecap thereof, as well as the ligaments surrounding it, were seriously injured, resulting in his being confined, as alleged, to an infirmary for a period of 20 weeks, during which time he was totally disabled, and he charged that, following the expiration of his total disability, he was partially disabled for an additional period of 10 weeks or more. In compliance with the requirements of the association, he made out proof of his accident, together with the resulting injuries and disabilities, and claimed that under the constitution and by-laws of the association, a member of the class he was, was entitled to an indemnity of $25 per week for the total disability resulting from his accident, and to $12.50 per week for the 10 weeks partial disability, which he claimed. These items aggregated a total sum of $625. The association declining to pay this sum, or any part of it, he filed this suit against it in the Jefferson circuit court, common pleas division No. 2, on March 19, 1914, seeking to recover from it the sum of $625. The defendant demurred to the petition, which was overruled, and it filed its answer, the first paragraph of which was a general denial of the allegations of the petition, and the second paragraph it relied upon certain false and fraudulent answers, charged to have been made by the plaintiff in answer to certain material questions propounded to him in the written application which he made when he obtained his certificate of membership. The plaintiff filed a demurrer to the second paragraph of the answer, upon the ground that neither the application nor a copy thereof was attached to the certificate, as is required by section 679 of the Kentucky Statutes. The court sustained this demurrer, whereupon the defendant filed an amended or supplemental answer, in which it was, in substance, stated that there was nothing in the face of the certificate, nor in any of the conditions printed on the back of it, to show that the defendant agreed to pay any sum as indemnity for accidental injuries, and that such sum could only be ascertained by referring to the constitution and by-laws of the defendant, neither of which was attached to the certificate, nor was there a copy of either attached to it, and section 679 was invoked and relied upon by it to defeat a recovery by the plaintiff. A demurrer was filed by the plaintiff to this pleading, and the court carried the demurrer back to the petition and sustained it, and, the plaintiff declining to plead further, his petition was dismissed, and from this judgment he prosecutes this appeal.

Section 679 of the Kentucky Statutes, as it existed in 1902, at the date of the issuing of the certificate sued on, is as follows:

"679. Application or Charter Referred to in Policy Must be Attached to it [[[Fraternal Organizations Excepted].-- All policies or certificates hereafter issued to persons within the commonwealth by corporations transacting business therein under this law, which policies or certificates contain any reference to the application of the insured, or the constitution, by-laws or other rules of the

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