74 Mo. App. 490 | Mo. Ct. App. | 1898
— This action is based on an insurance certificate issued to Norman J. Brower, plaintiff’s son, by defendant, a benevolent association. The association and its certificates of insurance are governed by the statute relating to insurance on the assessment plan. Plaintiff recovered in the trial court the full amount of the certificate.
The court at the instance of plaintiff gave the following instruction over the objection of defendant: “The jury are instructed that the law presumes the love of life to be so strong that no human being will voluntarily take his own life, and that when a person dies from violence such death is. caused by accident and not by design, and it devolves upon the defendant to show by a preponderance of the evidence that the death of Norman J. Brower was the result of his own voluntary act done for the purpose of taking his own life.” It will be noticed that the instruction devolves upon defendant the onus of showing to the satisfaction of the jury that the deceased’s death was caused by his voluntary act. The word “voluntary,” as used in the instruction-had reference to an exercise of the mind as to choice between life and death. It was just such an instruction as would have been proper if the provision against self-destruction had been, “who shall commit suicide when sane, or, when not so far insane as to prevent a voluntary exercise of choice between life and death.” It is not necessary to enter into a discussion of the medical views expressed by celebrated writers on the question of degrees of responsibility for acts which have resulted from insanity. But it may be
“Law 39a. Members holding their membership in any state when so created as a separate jurisdiction, shall only be liable for deaths occurring in . such jurisdiction and the membership outside such state jurisdiction shall not be liable for deaths occurring in any separate state jurisdiction. The death benefit fund derived from .and paid by members in any state juris-'*497 diction, shall not be used for the payment of claims occurring outside of such jurisdiction, neither shall such death benefit fund paid by members outside of any separate state jurisdiction be used in the payment of claims occurring in such state jurisdiction. Provided that should thirty-two (32) assessments levied upon the membership in any such separate state jurisdiction during any calendar year be not sufficient to pay the claims occurring in such jurisdiction then the reserve fund of the entire order may be drawn upon for the excess. Separate accounts shall be kept of all moneys received and paid out in the several jurisdictions.”
But we do not discover in the record, save by the verbal statement of a witness, that there was in fact any division of territory made at the time the certificate was issued. Afterward, however, and before deceased’s death, there was a division of territory established by the adoption of a new set of by-laws. The provision referred to is as follows:
“Law 2a. — Northern Jurisdiction — What Composed op. — The Northern Jurisdiction Supreme Lodge National Reserve Association, shall be composed of the following states and territories, to wit: Virginia, Kentucky, Missouri, Kansas, New Mexico, Arizona, California and all territory in the United States lying north of the same. No person residing in any of the above named territory shall be allowed to make application for membership in this order, unless made to some lodge located within said territory. Any-violation of this law shall effect the cancellation without notice of any certificate that may be issued to such applicant and a forfeiture of all moneys paid by him.” We, therefore, take the situation to be this: that at the time of issuing the certificate there was no division*498 of territory, but a provision contemplating such division and providing for separate assessments for deaths of members of the division assessed. We can only conclude that it was contemplated that such division would, or might be made, and that when made its provisions would be just as effective as though it had been in force when the certificate was issued. The deceased made that by-law a part of his contract. The face of the by-law itself shows that division of jurisdiction was contemplated. It reads: “Members holding their membership in any state when so created as a separate jurisdiction shall only be liable,” etc. Not only so, but, as has been stated, he agreed to abide by any legal and reasonable change or amendment of the by-laws which might afterward be made. It is therefore scarcely possible to resist the conclusion that the contract of insurance, as governed by the by-laws, only contemplates an assessment, for the death claim in controversy, on the members of that division or jurisdiction in which the deceased had his membership.
It is argued by plaintiff that the amended by-laws, in which is found the section establishing separate jurisdictions, is a complete set of laws and that the section first above quoted providing for separate assessments, was dropped and was therefore'not a by-law at the time of deceased’s death. That by contracting to abide by the by-laws as they existed or as they might be changed, the change would apply to the certificate and ás by the change there was no provision left for separate assessments on the separate jurisdictions, such separate assessments could not be had. We do not think this argument is sound. For, as we have already said, the original contract of insurance, as shown by the by-law first quoted, was that the death claims should be collected from the jurisdiction in
The judgment will be reversed and cause remanded.