
    Winterberg v. Brotherhood of Locomotive Firemen and Enginemen.
    (Decided May 21, 1912.)
    Appeal from Kenton Circuit Court (Common Law and Equity Division).
    Insurance — Fraternal Insurance — Construction of Policy — Constitution of Society. — A policy of insurance, issued by á fraternal order to one of its members, does not, by its terms, authorize the beneficiary to recover for any injury he might sustain, but contains a reference to the constitution of the Order, in force at the time of a casualty which might arise and be the basis of a claim against it, for a determination of the contingency upon which benefits would be paid. The beneficiary under such policy having sustained an injury, must, in order to recover, allege an! prove that his injury comes within the contingency provided for in the constitution of the Order, in force at the time of his injury; and, being charged with knowledge of the constitution he cannot rely, for recovery, upon the contingency provided for in representations, in conflict with the constitution of the order, made to him by agents of the order.
    A. E. STRICKLETT for appellant.
    JACKSON & WOODWARD for appellee.
   Opinion op the Court by

Judge Lassing —

Affirming.

Ignaee F. Winterberg brought suit against the Brotherhood of Locomotive Firemen and Enginemen, in-which he sought to recover certain benefits under a> policy of insurance, which had been issued to him by said order in 1903, at which time he was a member of Old Kentucky Lodge No. 584, a branch or subordinate lodge of the Brotherhood of Locomotive Firemen and Engine-men. He alleged that in April, 1905, he sustained physical injuries, whereby the sight of one of his eyes was destroyed; that in due time he furnished proof of his injuries to the defendant who rejected his claim. The policy of insurance was filed with and made part of the petition. Among other things, it provides as follows:

“That Ignace F. Winterberg, who is a member of Old Kentucky Lodge No. 584, of said Brotherhood, located in the city of Ludlow, State of Kentucky, is entitled to all the rights, privileges and benefits of membership in said Brotherhood of Locomotive Firemen and Enginemen, and that in the event of his becoming afflicted or sustaining one or more of the physical injuries, or bodily ailments for which payment is provided in the constitution of said Brotherhood in force and effect at the time a liability against said Brotherhood may arise for such physical injury or bodily ailment, and having furnished said Brotherhood such proof of such physical injury or bodily ailment, as may be required by the constitution, rules or regulations of said Brotherhood, he shall be entitled to participate in the beneficiary fund of the said brotherhood to the extent of fifteen hundred dollars, etc.”

A copy of the constitution was not filed with the petition, nor was it alleged that the injury for which a benefit was- sought, was one of those specified in the constitution, for which a benefit would be allowed, but, it was pleaded that the agents and representatives of the defendant, at the time the certificate of membership was applied for, represented to plaintiff that the provisions of the benefit certificate embraced and included any impairment of, or loss of sight of, or blindness in one or both eyes; and that he relied upon said statements and representations in . accepting said policy. A demurrer was sustained to this petition, the plaintiff declined to plead further, and the suit was dismissed. The plaintiff appeals.

Appellant was a member of the Order, and, as such, was charged with knowledge of its rules and regulation as- expressed in its constitution and by-laws. He will not be heard to say that he relied upon representations made to him by agents of the Order which, he must have known, were in direct conflict with and open violation of its constitution and' by-laws.

It will be noticed that the policy does not autliorize a member to participate in the benefit fund, for any injury or bodily ailment that he may sustain, or be afflicted with, but only such as are authorized by the constitution, at the time the right to participate in the benefit fund is asserted. The policy further provides that it is issued with the express understanding and agreement that the constitution may be changed at any time; and, hence, in accepting the policy, appellant did so, with the express agreement and understanding that the order might at any time fix and determine what physical injuries and bodily ailments the members would be entitled to benefits for. It is apparent, therefore, that, under the plain provisions of the policy, before appellant would be entitled to recover anything whatever, it would be incumbent upon him to show that, under the provisions of the constitution in force at the time he sustained the injury and asserted his claim, his injury was of that class for which he was entitled to pay. Construing the pleading most strongly against the pleader, all that is alleged in the petition may be true, and yet, no right of recovery exists, for the reason that, although the constitution might, at the time the policy was issued, have provided that for the loss of or injury to an eye a member would be entitled to participate in the benefit fund; and, under the further provision of the policy giving to the Order the right to change the constitution, in order to entitle him to recover, he would have to allege and prove that the constitution, at the time he as’serted his claim, authorized its payment. This, he failed to do, and the trial court correctly held that the petition did not state a cause of action.

Judgment affirmed.  