Opinión op the court by
JUDGE HOBSON
— Reversing.
Appellee, the Ancient Order of United Workmen, is a corporation created by the laws of Kentucky. It consists of a supreme lodge and subordinate lodges. A beneficiary fund is set apart for the benefit of the families or heirs at law of deceased members. Benefit certificates are issued to the members, and they have the right of naming their beneficiaries. It is a fraternal association, governed by the lodge system under the supervision of a supreme lodge, which pays no commissions ánd employs no agents, except in the organization of local subordinate lodges and supervising their work. John G. Mooney held a certificate in the order, and while in regular standing shot himself on March 2, 1900. His mother was named as his beneficiary, and sought in this action to recover of the order on the benefit certificate. The defendant resisted recovery on the ground that the assured while sane voluntarily took his own life and at the conclusion of the evidence, the court peremptorily instructed the jury to find for the defendant. The certificate sued on is in these words: “This certificate, issued by the Grand Lodge of the Ancient Order of United Workmen, of Kentucky, witnesseth: That Brother John G. Mooney, a workman degree member of John L. Dorsey Lodge, No. 98, of said order, located at Dixon, in the State of Kentucky, is entitled to all the rights, benefits, and privileges of membership in the Ancient Order of United Workmen, and to designate the beneficiary to *957whom the sum of two thousand dollars of the beneficiary fund of the order shall, at his death, be paid. This certificate is issued subject to, and is to be construed by, the laws of the order. He designates, as beneficiary under the terms hereof, Sarah Jane Mooney, bearing to him the relation of mother. In witness whereof the Grand Lodge has caused this to be signed by its Grand Master Workman and Grand Recorder, and the seal thereof to be attached this 29th day of November, 1899. John W. Baker, Grand Master Workman. J. G. Walter, Grand Recorder.” It will be observed that there is nothing in the certificate in regard to suicide, or providing that the company shall not be liable if the assured killed himself. It was, however, pleaded by the defendant that this was stipulated in the laws of the order, and that by the terms of the certificate it is to be construed and controlled by these laws. The only thing in the laws of the order on the subject is in section 8, article 10, of the by-laws, which, among other things, prescribes a form of application to be used by applicants for membership. In this form so prescribed, these words are used: “I further agree that if, within two years after the date of my taking or receiving the workman degree, my death should occur by suicide, whether sane or insane, except in delirium resulting from disease, or while under treatment for insanity, or after a judicial declaration of insanity, then the only sum which shall be paid, or which is payable, to my beneficiaries named in my beneficiary certificate, shall be the amount which I may have paid into the beneficiary fund of the order during the term of my membership.” But the application which the deceased in fact signed was on a different form, and was in these words: “November 29, 1899. To the Grand Lodge of Kentucky: I, John G. Mooney, having made application for the workman degree in John L. Dorsey Lodge, *958No.--Ancient Order of United Workmen, State of Kentucky, do hereby agree that compliance on my part with all the laws, regulations, and requirements which are or may be enacted by said order is the express condition upon which I am to be entitled to have and enjoy all the rights, benefits, and privileges of said order. I certify that the answers made by me to the' questions propounded by the medical examiner of this lodge, which are attached to this application, and form a part thereof, are true. I further agree that the beneficiary certificate to be issued hereon shall have no binding force whatever until I shall have taken the workman degree of said order, and until my medical examination has been approved by the Supreme or Grand Medical Examiner, as the case may be. I hereby authorize and direct that the amount to which my beneficiaries may be entitled, to-wit, $2,000.00 of the beneficiary fund of the order, shall, at my death, be paid to Mrs. Sarah Jane Mooney, bearing relation to me of mother.”
It would seem from the evidence that the by-law providing for the form of application above quoted was of recent adoption, and that forms of application made out according to it had not been sent out to the subordinate lodge at the time the deceased joined. The proof on this subject is not clear; but. however it may be, he in fact used the old form, and, so far as the proof shows, knew nothing of the other form. We are therefore of opinion that his contract can not be tested or in any way affected by a mere form of application which had been ordained by the Grand Lodge, but which was not in fact used in his case. In the Supreme Commandery of the United Order of the Golden Cross v. Hughes 114 Ky., 175" court="Ky. Ct. App." date_filed="1902-11-26" href="https://app.midpage.ai/document/supreme-commandery-of-the-united-order-of-the-golden-cross-of-the-world-v-hughes-7135132?utm_source=webapp" opinion_id="7135132">114 Ky., 175 (24 R., 984), 70 S.W., 405" court="Ky. Ct. App." date_filed="1902-11-26" href="https://app.midpage.ai/document/supreme-commandery-of-the-united-order-of-the-golden-cross-of-the-world-v-hughes-7135132?utm_source=webapp" opinion_id="7135132">70 S. W., 405, it was held that section 679 of the Kentucky Statutes is applicable to societies such as appellee, and that the application for the certificate *959or the by-laws or other rales of the corporation, unless attached to and accompanying the certificate, can not be received in evidence or considered a part of the contract in any controversy between the parties interested in the certificate. As the by-law in question was not made a part of the certificate or'attached to it, it can not be considered, and the defense to the action based on this by-law can not be maintained. The peremptory instruction of the circuit court to the jury to find for the defendant by reason of the by-law was, therefore, erroneous.
There being nothing in the certificate in regard to suicide, the question remains, is it a defense to the action that the deceased while sane voluntarily killed himself? The proof shows that the deceased was about 22 years old; his father had died four months before, leaving the deceased, his mother, and a younger brother surviving him; the deceased had been made postmaster in the room of his father at the town of Dixon, Webster county. He had no- other insurance on his life. His health was good. So far as the evidence goes, he had no reason .to complain of life. At the death •of his father, he had acted very singularly, and this he had kept up from time to time since. Not a few of his friends before he shot himself thought him of unsound mind. His conduct on the night before his death and at the time of the shooting tended to sustain this conclusion, and there was sufficient evidence to go to tire jury on the question os to whether he was sane or insane at the time. The* rule as to suicide where the policy is silent on the subject is thus well stated in 19 Amer. & Eng. Ency. of Law, page 73: “If the insured in a contract of life insurance, taken out for the benefit' of "his estate, or payable to a beneficiary, the designation of whom may be changed at the option of the insured with the consent of the insurer, commits suicide, *960the policy is void if the insured was sane when he took his own life, and this for two reasons: In the first place, every contract of life insurance must be construed to contain an implied condition that the insured will not intentionally terminate his life, but that the insurer shall have the benefit of the chances of its continuance until terminated in the natural ordinary course of events. It, is upon these chances that the premium is calculated and the contract is founded; hence the suicide of the insured operates as a fraud upon the insurer, and especially is this so when the insurance is taken out in contemplation of the act. In the second place, the enforcement of the contract in case of death by suicide is opposed to public policy. If the contract should expressly include death from this cause, the provision, even if not prohibited by statute, would be contrary to public policy, in that it tempted or encouraged the insured to commit suicide, and it is obvious that the court will not imply a condition which if expressed in the contract would render it void. But when the policy is made payable to a nominated beneficiary, and contains no stipulation that it shall be void in case of the death of the insured by suicide, it may be enforced, notwithstanding the insured dies by his own hand, unless, perhaps, where the policy was taken out in contemplation of suicide.” See #>' also, to this effect, Hartman v. Keystone Mutual Life Insurance Co., 21 Pa., 466" court="Pa." date_filed="1853-09-08" href="https://app.midpage.ai/document/hartman-v-keystone-insurance-6229480?utm_source=webapp" opinion_id="6229480">21 Pa., 466; Smith v. National Benefit Society, 123 N.Y., 85" court="NY" date_filed="1890-10-07" href="https://app.midpage.ai/document/smith-v-national-benefit-society-3598033?utm_source=webapp" opinion_id="3598033">123 N. Y., 85, 25 N. E., 197, 9 L. R. A., 616; Ritter v. Mutual Life Insurance Co., 169 U.S., 139" court="SCOTUS" date_filed="1898-01-17" href="https://app.midpage.ai/document/ritter-v-mutual-life-ins-co-of-ny-94808?utm_source=webapp" opinion_id="94808">169 U. S., 139, 18 Sup. Ct., 300, 42 L. Ed., 693" court="SCOTUS" date_filed="1898-01-17" href="https://app.midpage.ai/document/ritter-v-mutual-life-ins-co-of-ny-94808?utm_source=webapp" opinion_id="94808">42 L. Ed., 693; Knights Golden Rule v. Ainsworth, 46 Am. Rep., 332; Bliss, Life Insurance, section 242. Note to Breasted v. Farmers’ Loan & Trust Co., 59 Am. Dec., 487.
It is earnestly insisted that if the insured, when he fired the fatal shot, had sufficient mental power to know that it *961would take his life, and fired the shot with that intention, there can he no recovery. We are referred to authorities so holding under certain policies containing stipulations as to suicide when insane, but we do not think this rule applicable to a case where the policy is entirely silent. The only reason that the death of the insured by his own hands is allowed to defeat the policy in such a case is, in the end, that it is a fraud on the company. But there can be no fraud by one who is insane. Those who issue such policies know that men are liable, to become insane, and that insane persons at times commit suicide. If they wish to protect themselves from this risk, they should so provide in their policies. Where the policy is silent, we are unwilling to go beyond the rule above laid down exempting the company from responsibility where the insured voluntarily kills himself while sane. For the contract of insurance must be treated like any other contract, and the act of an insane person is not a defense to actions on any other contract, so far as we know. Under the evidence, tha court should have submitted to the jury the question whether the assured voluntarily killed himself while sane. Wei intimate no opinion as to what should be the rule where the policy has, under the terms of the policy, become incontestable. The deceased was insane at the time of the shooting if he was then without sufficient reason to know what lie was doing, or to distinguish right from wrong, or if he had not then sufficient will power to govern his actions, by reason of some insane impulse (the result of mental unsoundness) which he could not resist or control.
Judgment reversed, and cause remanded for a new trial.