75 P. 477 | Kan. | 1904
The opinion of the court was delivered by
This was an action on a certificate of memership in a fraternal order, the Supreme Court of Honor, held by George C. Updegraff at the time
The insured came to his death by suicide more than two years after the date of his certificate of membership, which certificate was in effect a policy of life insurance for the sum of $2000, conditioned on the insured’s complying with the constitution, rules and by-laws of the order. The certificate provided that the company should not be liable if the insured should die in violation of section 2, article 10, of the constitution, which was made a part thereof. It reads :
“This order will not pay the benefits of members who commit suicide, whether sane or insane, except it be committed in delirium resulting from illness, or while the member is under treatment for insanity, or has been judicially declared to be insane; but in all cases not within said exceptions, the amount of money contributed to the benefit fund by such members shall be returned, and shall be paid to the beneficiaries' out of said fund in lieu of the benefit.”
A section of the constitution of the Supreme Court of Honor in force when the benefit certificate was issued, and at the date of the holder’s death was as follows :
“Sec. 99. After two years certificates of membership shall be incontestable for any cause except fraud, violation of the constitution or laws of this order, or a failure to pay the assessments for the benefit and general funds as provided by the laws.”
Defendant in error had judgment in the court below.
The sole question involved is whether the provision in the benefit certificate which rendered it incontestable after two years was void when it appeared that the insured took his own life. Counsel for plaintiff in error rely on the case Ritter v. Mutual Life Insurance
In Patterson and others v. The Natural Premium Mu-
“The fact that insurance companies have almost universally deemed it necessary to insert in their policies provisions exempting them from liability in case of suicide, ‘sane or insane,’ may perhaps also be considered as showing the general trend of opinion upon the subject in insurance circles ; but, whether this deduction is to be properly drawn or not, we think it certain that the fact-that life-insurance policies universally contain this provision is of weight in determining the construction now to be placed upon a policy which omits all specific reference to suicide, and also ostentatiously contains a clause providing that it shall be absolutely incontestable for any cause save for nonpayment of premiums or misstatement of age. What would an applicant for insurance be entitled to think was the meaning of such a policy, when presented to him; garnished with the usual and customary commendations of the average solicitor of insurance? Certainly he would not think that its legal effect was the same as that of a policy containing the usual provisions against suicide, sane or insane.”
It was further held in the decision quoted from that the interest of the named beneficiary is a vested interest which passes to the administrator of the beneficiary in the case of his death and falls within the New York and Minnesota rule, which is, as against such a beneficiary, that suicide by the insured while sane is not a defense, in the absence of a provision to that effect in the policy. The court said :
“Nor would the application of that principle to this •case necessarily conflict with the Ritter case, where the policy was in favor of the estate of the insured. It may well be in such a case that the intentional suicide of the insured while sane would prevent a recovery by his personal representatives, and yet not prevent a recovery in case of a policy in favor of
-“The incontestable clause would seem to effectually bar this defense. If this clause be not altogether a glittering generality, put in for no purpose except to induce men to insure, it would seem that it must cover such misstatements or omissions as are here alleged. Such clauses have been upheld by various courts. (Wright v. Mut. B. L. Asso., 118 N. Y. 237, 23 N. E. 186, 6 L. R. A. 731, 16 Am. St. Rep. 749; Simpson v. Life Ins. Co., 115 N. C. 393, 20 S. E. 517; Goodwin v. Provident S. L. Ass. Asso., 97 Iowa, 226, 66 N.W. 157, 32 L. R. A. 473, 59 Am. St. Rep. 411; Kline v. Nat. B. Asso., 111 Ind. 462, 11 N. E. 620, 60 Am. Rep. 703.) ”
In Royal Circle v. Achterrath, 204 Ill. 549, 68 N. E. 492, a late decision by the supreme court of Illinois, the precise question involved was decided against the contention of counsel for plaintiff in error. The case of Goodwin v. Assurance Association, 97 Iowa, 226, 66 N. W. 157, 32 L. R. A. 473, 59 Am. St. Rep. 411, takes the same view. See, to same effect, Mareck v. Mutual Reserve Fund Life Assn., 62 Minn. 39, 64 N. W. 68, 54 Am. St. Rep. 613. We deem it unnecessary to say more than has been expressed in the decisions favorable to defendant in error which we have quoted and cited. They fully cover the case and meet with our approval.
The judgment of the court below will be affirmed.