The certificate sued on contains the following proviso:
“I agree that my disappearance or long continued absence, unheard of from my family or place of residence, shall not be regarded as evidence of my death, or of any right to recover under my certificate, until after the expiration of my expectancy оf life, according to the mortality tables of the National Fraternal Congress.”
The foregoing provision was supported by an existing bylaw to the sаme effect. The fighting question in this case is whether the foregoing provision was valid and binding upon the insured and his beneficiary.
The effect of seven-year disappearance upon the rights of the insured and his beneficiary has been considered in a series of our cases, as follows:
Olson v. Modern Woodmen,
In the four cited cases of Olson, Richey, Haines, and Fryer, by-lаws were involved which repudiated the presumption of death from the fact of disappearance and a seven-year absenсe. In each case, such by-law was not in existence at.the time of the issuance of the policy, but was enacted thereafter. In each case, the policy issued purported to bind the policyholder to future by-laws. In each case we held that the enactment of suсh future by-laws was not a reasonable exercise of the power conferred by the terms of the policy, in that it operated to reduсe materially the scope of insurance otherwise contracted for. Such is not the question involved in the case at bar. The presеnt by-law was not only in existence at the time the insured became a member, but its provision was incorporated in the certificate itself. It is a рart of the instrument upon which plaintiff predicates her action.
However, in the
Fleming
case,
In our judgment the distinction is a very material one, and warrants differentiation in the legal effect of the resрective policies. Notwithstanding this fact, it is contended that our holding in the Fleming case was effective, nevertheless, to foreclose such differentiation now. Whether we are thus foreclosed by the Fleming case is the first difficulty now confronting us. If nay, we could readily agree that the provision of policy and by-law *1141 now under consideration is a valid one, and is, therefore, enforeible according to its terms.
In the
Fleming
case, one ground of сondemnation of the proviso under consideration herein is that it is an attempt to abrogate a rule of evidence, and is, therefore, an infringement upon the functions of the court in future liti-gations upon the contract. This ground of condemnation, if valid, is applicable to the case at bar. To follow this ground of condemnation, however, involves us in another conflict of precedents. It is in conflict with our previous hоlding in
Roeh v. Business Men’s Prot. Assn.,
‘ ‘ It is contended that the by-law is contrary to public policy, in that it attempts to modify and control the procedure of courts of justice. It does not in any manner deprive courts of their jurisdiсtion, but simply provides a rule of evidence or a condition precedent or subsequent to a right of recovery. AVe see nothing in the by-law contrary to public policy. Contracts relating to procedure have frequently been sustained. The parties may, by contract, fix their own statute of limitations. See
Harrison v. Insurance Co.,
Our foregoing pronouncement has been consistently followed by us ever since, in the "eyewitnеss” cases. See
Pride v. Inter-State Bus. Men’s Acc. Assn.,
In so far, therefore, as the Fleming case holds that the policy provision therein under consideration was void as an interference with court procedure, it is now overruled.
The only other ground urged against the validity of the policy provision is that it is unreasonable. Some courts have so held. In our judgment, the weight of authority is clearly to the contrary. On principle, we see little ground for such holding. To permit a life policy to be constructively matured by the mere disappearance of the insured clearly introduces into the risk a moral hazard. It creates a motive to disappearancе. Insurance companies must take account of moral hazards, and it is their natural duty to make reasonable provision against them. A life insurаnce policy does not ordinarily mature within seven years. The policy proviso under consideration gives to the insured the benefit of his presumptive expectancy, even in case of disappearance. It thereby removes from him the motive to accelerate maturity by disappearance. It works no fraud upon him, when it is made known to him by the terms of his policy. It exacts nothing more from him than the actual cost of his insurance. By means of a medical examination, the. insurance company assures itself of the character of the risk it assumes and оf the fact that the physical condition of the insured is such as to warrant a normal expectancy of life. Without such medical examination, no insurance company could safely issue policies. Nor would the public authorities permit its transaction of business without such safeguard. But а medical examination is worthless against the prospective or possible disappearance. Assurance against constructivе death by disappearance must be had, if at all, by other means. Such is the function of the policy provision under consideration. The net еffect of the provision in the case at bar is that the medical examination of the insured disclosed a physical state indicating an exрectancy of 25 years. The insured and the insurer bargained upon the basis of this expectancy, in lieu of any rule to the contrary. Why such a provision should be *1143 deemed -unreasonable, or void, as against public policy, is not apparent to us. We hold the same to be valid.
The judgment below is, accordingly, — Reversed.