Schack v. Supreme Lodge of the Fraternal Brotherhood

HALL, J.

Plaintiff, as the beneficiary, brought this action against defendant, as the insurer, upon an insurance policy upon the life of Jans A. Schack, father of plaintiff and member of the Fraternal Brotherhood.

At the close of plaintiff’s case the court granted a nonsuit upon the motion of the defendant, and this is an appeal from the judgment of nonsuit entered accordingly.

The policy of insurance is in the form of a certificate of membership in the Fraternal Brotherhood as well as a contract of insurance. It is set forth in the complaint, and by its terms appears to' have been issued in accordance with “the provisions of the constitution and laws of the order now in force, or that may hereafter be made by the Supreme Lodge of the Fraternal Brotherhood which are hereby referred to and made a part of this contract. ’ ’ The policy was. dated and issued October 2, 1900.

The complaint does not set forth the provisions of the constitution and laws of the order relating to insurance.

At the trial, however, plaintiff proved that the constitution and by-laws of the order, at the date of the contract sued on, contained in section 258 thereof the following provisions:

“258 (a) Any member of the order who commits suicide shall

ipso facto

forfeit all benefits of whatsoever kind which his beneficiary or beneficiaries or personal representative or .personal representatives would otherwise have been entitled to receive, under the constitution and laws, from the Supreme Lodge or from the Subordinate Lodge of which the deceased was last a member.

“ (b) If, however, it is established to the satisfaction of the executive council or the Supreme Lodge that the deceased was a lunatic or person of unsound mind, and that prior to the act he was known and recognized as such, and the Supreme Secretary duly notified thereof, and provided further that

[587]

the act of suicide alone shall not constitute sufficient grounds for declaring that such person was a lunatic, or person of unsound mind, and entitled to the benefits of the order, and that such insanity was not due to nor caused by the intemperate, immoral, evil habits or misconduct of the deceased, then in such case the benefit shall not be forfeited, as provided in this section.