154 Ky. 340 | Ky. Ct. App. | 1913
Reversing.
Ora Bracket brought this suit against the Modern Brotherhood of America to recover $1,000, the amount of a certificate held by her husband in the Order. The Order by its answer pleaded in substance that the bylaws of the Order provide as follows:
“The certificate of any beneficial member of this Society, who is now engaged in the manufacture or sale of malt, spirituous or vinous liquors as a beverage, in the capacity of proprietor, stockholder, agent or employee, is hereby declared to be, and is hereby made absolutely null and void, and no payment made by such person of any dues, or assessments of any character, or for any purpose, to the secretary, or other officer of the subordinate lodge of which he or she is a member, or to, the Supreme Secretary, or any officer the Supreme Lodge, shall have the effect of waiving such forfeiture or reinstating such certificate holder to any rights, benefits or privileges as a member of this society.
‘ ‘ Should any person who is now or who shall hereafter become a member of this Society, engage in the manufacture, or sale, of malt, spirituous or vinous liquors as a beverage in the capacity of proprietor, stockholder, agent or employee, or be convicted of a felony after being adopted into this Society, he shall thereby, by reason of said facts, forfeit all rights as a member of this Society, and his certificate shall thereby become absolutely null and void, without any action on the part of his subordinate lodge, the Supreme Lodge, or by this Society, or any of the officers thereof; and the payment by such member of any dues or assessments thereafter, or the acceptance thereof by the officers of his subordinate lodge or of the Supreme Lodge or of this Society, shall not have the effect of waiving such forfeiture or reinstating such person to any rights,, benefits or privileges as a member of this Society.”
It is also alleged that the plaintiff’s husband, Isaac Bracket,-was not a farmer at the time of his application as stated by bim therein, but was then engaged in the manufacture of spirituous liquors as a beverage in the capacity of agent or employee, and that he continued in this occupation from that time until his death. The certificate was issued on September 21, 1909. Bracket died on July 23, 1911. The allegations of the answer as to Bracket’s occupation were denied by the reply. On the
It will be observed that by the by-laws, the certificate of a member was void if he was ‘ ‘ engaged in the manufacture or sale of malt, spirituous or vinous liquors as a beverage in the capacity of proprietor, stockholder, agent or employee.” It is clear from the proof that the deceased was not engaged in the sale of malt, spirituous or vinous
It is a sound rule that the language of insurance contracts being selected by the insurer, shall be construed against him, and that a recovery on the contract will not be denied the insured unless required by the terms of the contract naturally construed. The United States government taxes the manufacture of whiskey at so much per gallon. "When the whiskey is made and put into barrels, it is placed in a government warehouse, and may remain there for a number of years. The tax on it is paid when it is taken out of the warehouse, or when the period for which it may remain in the bonded warehouse has expired. In the case at bar the whiskey had been manufactured and placed in the warehouse and four years after-wards, the owners, instead of selling it in barrels had the whiskey placed in bottles before selling it. Much whiskey is sold in barrels. The business of bottling whiskey in bond had much increased of late years from the fact that much rectified whiskey is on the market; and that whiskey that is bottled in bond and stamped by the government cannot be rectified whiskey. The bottling of whiskey however is not confined to the distiller who manufactures it; it may be bottled by others, and the fact that it is bottled by the distiller does not change the nature of the business. We do not think that the employees in this bottling house who were putting the whiskey in bottles four years after it was made, can fairly be said to have been engaged in the manufacture of spirituous liquors as a beverage; for the whiskey was a completed product when placed in the barrels and much of it is in fact sold in that way. Certainly the man who washed the bottles before the whiskey was put in them or who ran the machine by which the bottles were corked, would not be said to be engaged in the manufacture of spirituous liquors as_ a beverage, and we do not see that Bracket can be distinguished from either of these. He was simply helping to
The defendant by its answer pleaded in substance that it was stipulated in the contract that the insured should pay his assessments in each calendar month, and that if he failed to pay his certificate became void; that any member suspended for the non-payment of his assessments, might be reinstated by the payment within sixty days of his dues, provided he was in good health at the tune of his reinstatement; that the deceased failed to pay his assessments in the month of June, and that he paid them on July 2, and was reinstated, but that at that time he was not in good health, but was suffering from the disease which afterwards resulted in his death. The plaintiff by her reply denied that the insured was not in good health when he paid the assessment and was reinstated or that he was then suffering with the disease from which he died. The proof on the trial by his wife was that he was taken sick on July 5. The proof for the company by a physician was that the deceased consulted him on July 2, but the physician’s evidence is not clear as to the cause of this consultation. Under the evidence the question should have been submitted to the jury.
It is insisted for the appellant that the defendant waived its right of forfeiture for non-payment of assessments because its custom was to receive the stipulated payments though made after the time required by the contract, and that it is, therefore, estopped from enforcing the forfeiture, although the deceased was not in good health when he made the payment. But an estoppel must be pleaded; matter in estoppel cannot be given in evidence under a traverse. On the return of the case the
Judgment reversed and cause remanded for further proceedings consistent herewith.