Supreme Tent of Knights of Maccabees of the World v. Dupriest

• Decision Date: 20 June 1930
• Parties: SUPREME TENT OF THE KNIGHTS OF THE MACCABEES OF THE WORLD v. DUPRIEST.
• Court: Kentucky Court of Appeals

29 S.W.2d 599

235 Ky. 46

SUPREME TENT OF THE KNIGHTS OF THE MACCABEES OF THE WORLD v. DUPRIEST.

Court of Appeals of Kentucky

June 20, 1930

Appeal from Circuit Court, Livingston County.

Action by Robert L. Dupriest against the Supreme Tent of the Knights of the Maccabees of the World. From a declaratory judgment for plaintiff, defendant appeals.

Reversed with directions.

C. H Wilson, of Smithland, John B. McIlwain, of Port Huron, Mich and Cecil C. Wilson, of Smithland, for appellant.

Charles Ferguson, of Smithland, for appellee.

DRURY C.

The appellant seeks to reverse a declaratory judgment holding that the following benefit certificate is a valid contract:

"No. 9440 $2,000.00

This certifies, that Sir Knight Robert L. Dupriest has been regularly admitted as a Member of Smithland Tent, No. 120, located at Smithland, State of Ky. and that in accordance with, and under the provisions of the Laws of the Supreme Tent of the Knights of the Maccabees of the World, he is entitled to all the rights, benefits and privileges of membership therein, and that at his death one monthly rate on each life benefit member not exceeding in amount the sum of two thousand dollars, will be paid as a benefit to Carrie M., John T., Ollie A., William W., Bob Anice B., Cad A., & Marshall B. DuPriest bearing relationship to him of Wife and Children upon satisfactory proof of his death together with the surrender of this Certificate provided he shall have in every particular complied with the Laws of Said Supreme Tent, now in force, or that may hereafter be adopted, and has not untruthfully answered any question of his application for membership, or made untruthful statements therein, as shown by said application which is hereby made a part of this certificate.

In testimony whereof, the Supreme Tent has cause the Supreme Commander and Supreme Record Keeper to attest and affix hereto the Seal of the Supreme Tent of the Knights of the Maccabees of the World, this 14th day of Apr., 1904.

[Seal] D. D. Aithm, Sup. R. K.

[Seal] D. P. Markey, Sup. Com.

Countersigned, sealed and delivered by the Sir Knight Record Keeper of Smithland Tent No. 120 Knights of the Maccabees of the World, this 14th day of May, 1904.

O. C. Lasher, Sir Kt. R. K." Dupriest began paying appellant assessments of $1.80 per month and dues of 10 cents per month. In 1923 appellant demanded of him $12.70 per month. Dupriest continued to send $1.90 per month until on March 5, 1924, when his remittance was returned with a rather sharp letter, demanding $12.70, and refusing to accept less. Thereupon Dupriest filed this action for a declaratory judgment determining his rights. By the judgment that resulted this was held to be a valid contract for $2,000, and the assessments against Dupriest were fixed at $1.80.

On May 14, 1904, when this contract was made, section 679 of the Kentucky Statutes (1903) read as follows:

"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 corporation, either as forming part of the policy or contract between the parties thereto or having any bearing on said contract, shall contain or have attached to said policy or certificate a correct copy of the application as signed by the applicant, and the portions of the constitution, by-laws or other rules referred to; and unless so attached and accompanying the policy, no such application, constitution, by-laws or other rules shall be received as evidence in any controversy between the parties to or interested in said policy or certificate, and shall not be considered a part of the policy or of the contract between such parties. The said policy or certificate, application, constitution, by-laws or other rules shall be plainly printed, and no portion thereof shall be in type smaller than brevier." Acts 1891-92-3, p. 672, § 142.

That means exactly what it says, and we have so decided in numerous cases. Mooney v. A. O. U. W., 114 Ky. 950, 72 S.W. 288, 24 Ky. Law. Rep. 1787; Grand Lodge, A. O. U. W. v. Edwards, 85 S.W. 701, 27 Ky. Law Rep. 469; Bankers' Fraternal Union v. Donahue, 109 S.W. 878, 33 Ky. Law Rep. 196; Grand Lodge Ancient Order of United Workmen of Ky. v. Denzer, 129 Ky. 202, 110 S.W. 882, 33 Ky. Law Rep. 643; Sovereign Camp of Woodmen of the World v. Salmon (Ky.) 120 S.W. 358; United Order of the Golden Cross of the World v. Hughes, 114 Ky. 175, 70 S.W. 405, 24 Ky. Law Rep. 984; Yeomen of America v. Rott, 145 Ky. 604, 140 S.W. 1018; Masonic Life Ass'n of Western N.Y. v. Robinson, 149 Ky. 80, 147 S.W. 882, 41 L. R. A. (N. S.) 505; Metropolitan Life Ins. Co. v. Little, 149 Ky. 717, 149 S.W. 998; Home Protective Ass'n v. Williams, 150 Ky. 134, 150 S.W. 11; Ferlage v. Supreme Tribe of Ben Hur, 153 Ky. 645, 156 S.W. 139; Finch v. Bond, 158 Ky. 389, 165 S.W. 400; Supreme Council Catholic Knights of America v. Fenwick, 169 Ky. 269, 183 S.W. 906; Nuetzel v. Travelers' Protective Ass'n, 168 Ky. 734, 183 S.W. 499; Supreme Council, Catholic Knights of America, v. Wathen, 179 Ky. 64, 200 S.W. 320.

This statute became as much a part of the benefit certificate before us as if it had been written therein. Thereafter the statute was so amended as to make it inapplicable to societies such as appellant, but the rights of Dupriest, having become fixed when this certificate was issued, were not taken away by the amendment. To hold otherwise would permit an impairment of the obligation of this contract. See American Patriots v. Cavanaugh, 154 Ky. 653, 157 S.W. 1099; Supreme Council C. K. of A. v. Fenwick, 169 Ky. 269, 183 S.W. 906.

For the appellant a vast number of cases from other jurisdictions are cited, but they avail it nothing; this contract was made in Kentucky, and the rights of these parties must be settled under this Kentucky statute as it was and this contract as it is. What the statute was we know, but we are left in uncertainty about the contract. This much we know, the court erred in holding this to be a contract for $2,000.

By the terms of the contract, the appellant agreed to pay to the wife and children of Dupriest one monthly assessment on each life benefit member, provided that did not exceed $2,000. Concretely stated, that means that, if there are 600 such members when Dupriest dies, and the monthly assessment rate then is $2, appellant has undertaken to pay to the wife and children of Dupriest $1,200, but, if there then were 1,600 such members, it would only pay them $2,000, even though an assessment would raise $3,200; or, if there were then 60,000 such members, and the assessment rate $10 each, still the wife and children of Dupriest would get only $2,000. That disposes of the obligations of the appellant under this contract.

The obligations of Dupriest are not so clear. Turning back to and reading the certificate carefully will disclose that it does not impose upon him the payment of anything. All that he has to do is to comply in every particular with the laws of the Supreme Tent then in force or that may thereafter have been adopted. That means laws lawfully adopted and legally imposing some obligation upon Dupriest. No obligation is imposed upon him by any laws of the Supreme Tent, existing May 14, 1904, which were not then attached to this benefit certificate, and that means "attached"; handing to him a copy of such laws is not enough. See Bankers' Fraternal Union v. Donahue, 109 S.W. 878, 33 Ky. Law Rep. 196.

The statute in question was made for the protection of the insured, and hence, though unattached by laws, may be examined to ascertain the obligation of the insurer, as was held in Nuetzel v. Traveler's Protective Ass'n, 168 Ky. 734, 183 S.W. 499, yet such unattached by-laws cannot be examined to ascertain the obligation of the insured. See Masonic Life Ass'n v. Easley, 178 Ky. 56, 198 S.W. 569.

Hence, if appellant desires to contend that on May 14, 1904, it had by-laws imposing some obligation upon Dupriest, it should have set them out in its answer, and should have alleged they were attached to the benefit certificate delivered to Dupriest. It did plead certain by-laws, but did not plead they were attached. By agreement the answer and amended answer of the appellant were controverted of record, and the cause submitted for judgment in April, 1925.

On December 2, 1924, Dupriest had given his deposition. The appellant had taken a number of depositions, which...