Clemens v. Royal Neighbors of America

103 N.W. 402 | N.D. | 1905

Morgan, C. J.

Action upon a benefit certificate of insurance issued by the defendant, a corporation organized under the laws of the state of Illinois, doing business in this state as a fraternal beneficial society. The members of the society are permitted to avail -themselves of the benefit of the insurance provided for by its by-laws upon the acceptance of an application for insurance, payment of a certain fee, and the issuing of a certificate by the society. Payment of losses by the death of insured members is provided for by the collection of assessments from the members. The complaint alleges that one William Clemens received from the defendant a benefit certificate of insurance on the 9th day of May, 1899, and that the defendant thereby insured the life of said Clemens for a sum not to exceed $2,000; that said certificate provided that, in ca-se of the death of said Clemens, said sum should become payable to his surviving children; that said Clemens -died on the 3d day of November, 1900; that the defendant refuses to make an assessment from the members to pay said surviving children, although due proof of the death of said Clemens .has been made as provided by the laws of said society. The answer alleges that said Clemens -came to his death by suicide, and that, under the contract of insurance entered into between the defendant and Clemens, death by suicide forfeited all insurance. The trial court directed a verdict for the defendant. The plaintiffs procured a settlement of a statement of the case, and have appealed from the judgment.

The plaintiffs contend that the judgment should be reversed upon three grounds: (1) That the defendant is estopped from claiming that death by suicide is a forfeiture of the right to the insurance provided for by the benefit certificate; (2) that the evidence bearing upon the question of the suicide of Clemens should have been submitted to the jury; (3) that errors were committed in receiving and excluding evidence at the trial.

Upon the first question, the evidence shows that the certificate of insurance contained the following provision: That “William Clemens is entitled to the privileges of this order and the -be-nio ficiary or beneficiaries * * * to participate in its benefit fund * * * which will be paid to his children * * * subject to all conditions of this certificate and the laws of this order and liable to forfeiture if said neighbor shall not comply with the said conditions, laws and such by-laws and rules as are now in force or hereafter may be adopted by the supreme camp of the order,” etc. The application for membership was made a part of the benefit certificate, by express language, and contained the following stipulation or admission: “I understand that the laws of this order now in force or hereafter enacted enter into and become a part of every contract of indemnity by and between the members and the order and govern all rights thereunder. I understand and agree that this order does not indemnify against death from suicide,” etc. Section 102a of the by-laws of the order provided as follows: “If any member of this society holding a benefit certificate heretofore or hereafter issued shall come to his or her death by his or her hands, sane or insane, said benefit certificate of said member shall thereby become absolutely null and void.” It is stipulated by the parties that this section of the by-laws was in force when the application was made, and when the certificate and all its terms and conditions were accepted in writing by Clemens, and ever since has been in force. The appellant concedes that, under the language of the application and section 102a, death by suicide would render the certificate null and void, and subject to forfeiture. But it is argued that the following clause of the certificate, stating that it will be void “if the member holding this certificate * * * shall die * * * by any means or act which if used or done by such member while in possession of all natural faculties unimpaired would be deemed self-destruction,” is so ambiguous and obscure and contradictory, and inconsistent with the .provisions of the application and by-laws, that no effect can be given to it, and that the defendant should be estopped from asserting any defense based thereon. It is true, as contended, that ambiguous stipulations in a contract of insurance will be construed in favor of the beneficiary, and most strongly against the insurer. The reason why such construction is given such contracts is that the contracts are prepared by the insurer. Cook v. Benefit League (Minn.) 79 N. W. 320; Joyce on Insurance, section 65. A court will not indulge in a liberal construction of the terms of an insurance contract to uphold a forfeiture, but will construe such contract so as to avoid a forfeiture, if the language thereof will sustain such a construction. Kerr on Insurance, p. 432; Warwick v. Supreme Council K. of D. (Ga.) 32 S. E. 951; Inghram v. National Union (Iowa) 72 N. W. 559; Wallace v. German-American Ins. Co. (C. C.) 41 Fed. 742.

The principle contended for is not, however, 'applicable to the conditions in the benefit certificate in this case. The language used conveys but one meaning. It is not susceptible of an ambiguous construction, nor can the language be construed to convey any meaning inconsistent with the by-laws referring to the same subject-matter. The idea conveyed is that if the assured shall die by his own act, or through means of his own selection, the certificate would be void, whatever his condition of mind at the time. It is 'equivalent to saying that if the assured should die by his own hand, whether sane or insane, the certificate would be void. The authorities are quite uniform that such a condition in a policy would defeat a recoveiy thereon if the insured commits suicide. Kerr on Insurance, p. 395, and cases cited.

It is true that the same language is not used in the certificate that is used in the application for insurance, and in the by-laws pertaining to the effect of a death by suicide, but that does not avoid the contract in favor of a member of such society as this, as, by the very terms of the certificate, changes in the by-laws are made binding upon the assured; be having, in writing, accepted the certificate and all the conditions thereof. In this case there was no change in the conditions. The changes consisted in the language expressing the same condition. The following cases sustain the right of the insurer to change the by-laws as the conditions under which the liability is incurred when the assured consents to such change. Kerr on Insurance, section 61, and cases cited; Loeffler v. Modern Woodmen, 100 Wis. 79, 75 N. W. 1012; Daughtry v. Knights of Pythias, 48 La. Ann. 1203, 20 South. 712, 55 Am. St. Rep. 310; Supreme Commandery Knights Golden Rule v. Ainsworth (Ala.) 46 Am. Rep. 332. The identical language used in this 'benefit certificate has been construed by other courts, and held to be the equivalent of saying that if the assured should die by his own hands, sane or insane, then the certificate would be void. Keefer v. Modern Woodmen of America (Pa.) 52 Atl. 164; Cotter v. Royal Neighbors (Minn.) 79 N. W. 542.

The facts bearing upon the question of suicide are: Clemens died on the 3d day of November, 1900. He was a married man, about forty years of age. His family consisted of a wife and five children. His family relations were pleasant, and his standing in the community in which he resided was the highest. His business was that of the local agent for the Great Northern Elevator Company at Leonard, N. D., and 'he had been such agent for about nine years. On the morning of November 3, 1900, Clemens was at the depot, and there met the general superintendent of the elevator company and one Conrie. They started for the elevator together. After arriving at the elevator and unlocking the door, Clemens was asked to go to the lumber yard by a customer. He excused himself, saying he would return as soon as possible. Later Clemens went to the post office, got his mail, and took it to his residence. While at the depot he met a Catholic priest, whom he invited to become his guest while at Leonard. The invitation was accepted, and. the priest went to his house. When Clemens arrived at home he spoke to the priest, but what he said is not stated. He left the priest in the dining room, passed into the parlor, immediately returned to the dining room, and went upstairs. When he went upstairs he was calm, and his appearance the same as it ordinarily was. From twenty minutes to an 'hour thereafter he was found lying on the floor, dead, with a bullet hole in the right side of his head, back of the ear. A revolver was found lying near his feet. There was blood on the floor and on his head, and on a mirror in front of which he was found He was found lying on his back, with his feet near the wall, on which the mirror, with blood on it, was hung. There were no powder marks on his face or head. No one heard the report of the firing of the revolver, nor any noise from his falling. The room was eight by twelve feet in dimensions. There was no' post mortem examination or inquest, and the wound was not probed to find the bullet. It is proven that the bullet wound in the head was the cause of his death. On a table in the room was found a note in Clemens’ handwriting. The note was not produced at the trial, but a sufficient foundation was laid for the introduction by defendant of secondary proof of its contents. The note was as follows: “Bury me at Leonard. Kiss the children for me. Don’t take this too hard. Will.” An examination of the elevator company’s books kept by him showed that he was short in his accounts in the sum of $4,500.

■ The plaintiffs insist that these undisputed facts should -have been submitted to the jury, to determine whether Clemens’ death was caused by his own voluntary act or by other means. The presumption is that a death caused by unexplained means- was not suicidal. In the absence of proof, such death will be presumed to have been caused by accidental means. Stevens v. Continental Casualty Co., 12 N. D. 469, 97 N. W. 862, and cases cited. And the burden of proof is upon the insurer to show that death was caused in a manner or 'by means that exempt him from liability. Has the presumption of law that death was not caused by suicide been overcome by the defendant, as a matter of law ? If so, the direction of a verdict was proper. If reasonable men, viewing these undisputed facts, might differ in their conclusions .as to whether the deceased committed suicide, then the facts should have been submitted to the jury. If there is no evidence in the record that can be said to be inconsistent with the conclusion of death by suicide, then the question was properl)'' one for the court to direct the jury to find a verdict for the defendant. We think the facts all point to death by suicide, and are inconsistent with any other reasonable theory. If it be said that it might have been an accidental death, or one criminal by another, the note conclusively rebuts such possibility. The circumstances of meeting his employer, his shortage, and the impending exposure that must follow, the note, the position of the wound, the blood on the revolver and on the mirror, and that he was alone in the room, are sufficient facts, as a matter of law, to overcome the presumption against a death by suicidal means. A verdict for the plaintiff under such circumstances could not be sustained, and would be without any evidence to support it. The following authorities sustain a direction of a verdict in cases similar to the one at bar: Inghram v. National Union, 103 Iowa, 395, 72 N. W. 559; Kornfield v. Supreme Lodge O. M. P., 72 Mo. App. 604; Supreme Lodge K. of H. v. Fletcher (Miss.) 29 South. 523; Mutual Life Ins. Co. v. Hayward (Tex. Civ. App.) 27 S. W. 36 (note) ; Agen v. Metropolitan Life Ins. Co., 105 Wis. 217, 80 N. W. 1020, 76 Am. St. Rep. 905; Kerr on Insurance, p. 777.

Objection is made that the contents of .the note found on the table in the room should not have been received in evidence. The basis of the objection is that there is no proof as to the time when it was written. We think the claim untenable. The language of the note indicates that it was written just preceding the shooting. The finding of it in the room when the dead body was discovered also indicates that it was written, or at least placed on the table, just before the shooting. The note was relevant as bearing on the manner of death, the same as declarations of an intention to commit suicide are. Mutual Life Ins. Co. v. Hayward, supra; Hale v. Life Indemnity & Investment Co., 65 Minn. 548, 68 N. W. 182; Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285, 12 Sup. Ct. 909, 36 L. Ed. 706.

(103 N. W. 402.)

We have reached a conclusion in the case on undisputed testimony not objected to, except as to the note. Hence it becomes unnecessary to consider plaintiffs’ other objections to the testimony that was received as bearing upon the question whether deceased committed -suicide or not.

The judgment is affirmed.

All concur. Engerud, J., having been of -counsel, took no part -in the decision of the above case; Hon. Charles J. Fisk, judge of the First Judicial District, sitting in his s'tead by request.