Supreme Council Catholic Knights of America v. Winter's Adm'r

• Decision Date: 17 March 1900
• Citation: 55 S.W. 908,108 Ky. 141
• Parties: SUPREME COUNCIL CATHOLIC KNIGHTS OF AMERICA v. WINTER'S ADM'R. [1]
• Court: Kentucky Court of Appeals

55 S.W. 908

108 Ky. 141

SUPREME COUNCIL CATHOLIC KNIGHTS OF AMERICA v. WINTER'S ADM'R. ^[1]

Court of Appeals of Kentucky.

March 17, 1900

Appeal from circuit court, Jefferson county, law and equity division.

"To be officially reported."

Action by George Winter's administrator against the Supreme Council Catholic Knights of America on a benefit certificate. Judgment for plaintiff, and defendant appeals. Reversed.

Pryor O'Neal & Pryor and Newton G. Rogers, for appellant.

John W Barr, Jr., and Alex G. Barrett, Jr., for appellee.

BURNAM J.

Appellee as administrator with the will annexed of the estate of George Winter, sought in this action to recover a judgment upon a benefit certificate, and appellant sought to escape liability on the ground that prior to the death of Winter he had resigned his membership in the organization and had surrendered all rights, claims, and demands growing out of the issuing of the certificate to him; and in the third paragraph of the answer it is alleged that, under the provisions of the policy sued on, the assured expressly agreed to pay all assessments, dues, and fines properly assessed against him according to the laws, rules, and regulations of the association, and that, in default of doing so, he was liable to suspension as a member, and to lose all the benefits and rights belonging thereto; that prior to his death he had neglected and refused to pay certain dues and assessments properly demanded of him as a member of the organization, after personal notice and demand therefor, and being in default, he was suspended by the organization from all membership or rights therein, and was so suspended at the time of his death. Appellee in his reply denied that decedent had given up his rights and privileges as a member of the organization, or any benefit to be derived therefrom; and, in reply to the third paragraph of the answer, said that the defendant was estopped to plead the decedent's suspension for failure to pay assessments promptly, because it had, by its agents, expressly told him that prompt payment was unnecessary, and because it had allowed the decedent to believe that prompt payment was unnecessary by having repeatedly accepted payments from him theretofore, long after the assessments were due. The trial before a jury resulted in a verdict and judgment for the appellee, under a peremptory instruction from the court based upon the theory that there was nothing in the charter, by-laws, certificate of membership, or contract of insurance which expressly provided that the suspension of a defaulting member by failure to pay dues and assessments should forfeit his right, or the right of his personal representatives or beneficiaries, to recover the amount of the policy, in the event of his death, and that, in the absence of such an express provision, the defense of forfeiture could not be relied on.

Appellant is a mutual benefit or benevolent society, with its main office at Ft. Wayne, Ind., with a branch order in Louisville Ky. of which decedent became a member at the time of its organization. Among other provisions of the policy issued to deceased is the following: "The said assured expressly agrees to pay all assessments, dues, and fines assessed against him according to the laws, rules, and regulations of said supreme council which may now or hereafter govern the order." Section 171 of the by-laws provides: "Any branch failing to send assessments to the supreme treasurer within fifty-five days from date of notice shall be suspended by the supreme president. Any member who shall fail to pay such assessment as aforesaid shall be suspended from the branch by the acting president, and any branch allowing such delinquent to remain without suspending him shall pay out of its general fund all assessments due from such member while he is permitted to remain in good standing." And section 166 provides: "Each member of this branch who has been suspended for nonpayment of dues, fines, or assessments, applying to be reinstated, must pay the full amount for which he is in arrears for dues, all assessments and fines charged at date of suspension, and all debts on deaths that occurred on each assessment prior to his reinstatement, and shall also furnish the branch an affidavit that he is in sound health and has had no ailment during his suspension. The said affidavit shall be forwarded to the supreme secretary, provided that he apply for reinstatement within thirty days after the date of suspension, and pay a fine of $1.00, which fine shall be placed in the general fund of the order. After the expiration of thirty, and within ninety, days, any member who has been suspended shall have the right to apply for reinstatement, and must pay the full amount for which he is in arrears for dues, all assessments and fines due at the date of suspension, and all debts on deaths that occurred prior to reinstatement, and shall furnish the branch the medical examiner's certificate, as prescribed for persons on original application." And section 167 provides: "After the expiration of ninety days, any member who has been suspended shall have the right to apply for admission as a new member on complying with all the regulations of the order governing applications." And section 170 provides that: "When an assessment is due, a notice shall be sent by the secretary of the supreme lodge to the recording secretary of the branch of the order, and it is made the duty of each recording secretary to read the notice of the assessment at the next meeting of...