Gaffney v. Royal Neighbors of America

Decision Date02 July 1918
PartiesLAURA B. GAFFNEY, as Executrix of the Estate of MARGARET SMITH, Deceased, Respondent, v. ROYAL NEIGHBORS OF AMERICA, a Corporation, Appellant
CourtIdaho Supreme Court

LIMITATION OF ACTIONS-DEATH-PRESUMPTION OF FROM SEVEN YEARS' ABSENCE-MUTUAL BENEFICIARY SOCIETIES-BY-LAW-EVIDENCE.

1. In a case where the fact of death is established by the presumption arising from seven years' unexplained absence of a person, a cause of action on a benefit certificate payable upon the death of such person does not accrue until the end of the seven-year period of disappearance.

[As to presumption of death, see notes in 91 Am.Dec. 526, 92 Am.Dec 704; 46 Am.Rep. 761; 104 Am.St. 198.]

2. The fact of death may be proven by the unexplained absence of a person for seven years without having been heard from by his relatives or close personal friends, but such absence does not give rise to any presumption as to the particular time during the seven years when death occurs. Where the fact of death has been thus established, it is competent to find the date of death from facts and circumstances of such a character as to make it more probable that a person died at a particular time than that he survived. This is true, though the facts and circumstances be insufficient of themselves to establish the fact of death without the aid of the presumption arising from seven years' unexplained absence.

3. A by-law of a fraternal beneficiary insurance society which provides that no lapse of time or absence or disappearance on the part of any member shall entitle his or her beneficiary to recover the amount of his or her benefit certificate without proof of actual death of such member, and also that the disappearance or long-continued absence of any member unheard of shall not be regarded as evidence of death, nor raise the presumption of the death of the member, is void where the benefit certificate by its terms provides that the same shall be payable upon the death of the member.

4. Where evidence has been received of the absence of a person for seven years, and that he has not been heard from by his relatives or close personal friends during that period, a mere hearsay declaration of a third party, not a witness in the case, that he had seen the person who was supposed to have disappeared, is incompetent, and should not be received in evidence.

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Wm. W. Woods, Judge.

Action to recover upon benefit certificate of a fraternal beneficiary society. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent. Petition for rehearing denied.

James E. Babb, for Appellant.

Members of fraternal beneficiary societies are presumed to know the by-laws and are bound by them. (Corey v. Sherman (Iowa), 60 N.W. 232; Benes v. Supreme Lodge K. & L. of Honor, 231 Ill. 134, 139, 121 Am. St. 304, 83 N.E. 127, 14 L. R. A., N. S., 540; Miller v. National Council of K. & L. of Sec., 69 Kan. 234, 76 P. 830; Fry v. Charter Oak Life Ins. Co., 31 F. 197; Sterling v. Head Camp, 28 Utah 505, 80 P. 375.)

Unless death is proved the presumption is that life continues. (Greenleaf on Evidence, sec. 41; 19 Am. & Eng. Ency. of Law, 74; Reedy v. Millizen, 155 Ill. 636, 40 N.E. 1028; Whiting v. Nicholl, 46 Ill. 230, 241, 92 Am. Dec. 248; Clarke's Exrs. v. Canfield, 15 N.J. Eq. 119.)

An inference of death is not raised by seven years' absence alone. It must also be made to appear that the absentee has not been heard from by all persons who might be expected to hear from him, and it must be shown also that diligent search and inquiry has been made for him at all places where he might be. (Modern Woodmen v. Gerdom, 72 Kan. 391, 7 Ann. Cas. 570, 82 P. 1100, 2 L. R. A., N. S., 809; Hitz v. Ahlgren, 170 Ill. 60, 48 N.E. 1068; Metropolitan Life Ins. Co. v. Lyons, 50 Ind.App. 534, 98 N.E. 824; New York Life Ins. Co. v. Holck, 59 Colo. 416, 151 P. 916.)

Sec. 33 of appellant's by-laws provides that no presumption of death shall arise until the expiration of insured's period of expectancy, according to the National Fraternal Congress Table of Mortality. This has not expired. The by-law was binding and precludes recovery by appellee. (Kelly v. Supreme Council, 46 A.D. 79, 61 N.Y.S. 394; Porter v. Home Friendly Soc., 114 Ga. 937, 41 S.E. 45; Miller v. National Council, 69 Kan. 234, 76 P. 830; McLaughlin v. Sovereign Camp W. O. W., 97 Neb. 71, Ann. Cas. 1917A, 79, 149 N.W. 112, L. R. A. 1915B, 756; McGovern v. Brotherhood of Locomotive Fireman & Engineers, 85 Ohio St. 460, 98 N.E. 1128; Tisch v. Protected Home Circle, 72 Ohio St. 233, 74 N.E. 188.)

A provision in the by-law stating what evidence shall be admissible and sufficient is valid. (Underwood v. Modern Woodmen, 141 Iowa 240, 119 N.W. 610; Ross v. Modern Brotherhood of America, 120 Iowa 692, 95 N.W. 207.)

Where the contract provides the limitation of time within which suit may be instituted, such limitation is binding, and suit must be brought within the limitations therein provided. ( Faulk v. Fraternal Mystic Circle, 171 N.C. 301, 88 S.E. 431; Williams v. Western Travelers' Acc. Assn., 97 Neb. 352, 149 N.W. 822; Fitzpatrick v. North American Acc. Ins. Co., 18 Cal.App. 264, 123 P. 209; Ulman v. Supreme Commandery, 220 Mass. 422, 107 N.E. 960; Arold v. Supreme Conclave I. O. H., 123 Md. 675, 91 A. 829; Fey v. I. O. O. F. Mutual Life Ins. Soc., 120 Wis. 358, 98 N.W. 206; Larkin v. Modern Woodmen, 163 Mich. 670, 127 N.W. 786, 788; Mooney v. Supreme Council Royal Arcanum, 243 Pa. 463, 90 A. 132; Bates v. German Commercial Accident Co., 87 Vt. 128, Ann. Cas. 1916C, 447, 88 A. 532, 533.)

There is no evidence before the court in this case that Grace Wiley died at any time, and especially is there no evidence that she died at the time of her disappearance, and it was error for the court to submit to the jury the special finding with reference thereto. (Apitz v. Supreme Lodge K. & L. of Honor, 196 Ill.App. 278; Donovan v. Major, 253 Ill. 179, 97 N.E. 231.)

Needham & Needham and James E. Gyde, for Respondent.

Plaintiff was entitled to await the termination of the seven-year period which would give rise to the presumption of death before commencing this action; and, this being so, the statute of limitations could not have operated as a bar. ( Linneweber v. Supreme Council Catholic Knights, 30 Cal.App. 315, 158 P. 229.)

The by-laws should never be permitted to place a restriction on the beneficiary when enforcing the rights or claims of insured against the society. (Kennedy v. The Grand Fraternity, 36 Mont. 325, 92 P. 971, 25 L. R. A., N. S., 78.)

After a continued and unexplained absence of seven years from the home or residence the presumption of death of the absentee arises. (Davie v. Briggs, 97 U.S. 628, 24 L.Ed. 1086; In re Harrington's Estate, 140 Cal. 244, 98 Am. St. 51, 73 P. 1000; Kennedy v. Modern Woodmen, 243 Ill. 560, 90 N.E. 1084, 28 L. R. A., N. S., 181; Tisdale v. Connecticut Mut. Life Ins. Co., 26 Iowa 170, 96 Am. Dec. 136; Miller v. Sovereign Camp Woodmen of World, 140 Wis. 505, 133 Am. St. 1095, 122 N.W. 1126, 28 L. R. A., N. S., 178; Renard v. Bennett, 76 Kan. 848, 14 Ann. Cas. 240, 93 P. 261; Policemen's Benev. Assn. of Chicago v. Ryce, 213 Ill. 9, 104 Am. St. 190, 72 N.E. 764.)

The date of death was a material finding and the evidence fully sustains the finding and verdict of the jury. (Benjamin v. District Grand Lodge, 171 Cal. 260, 152 P. 731; Johnson v. Merithew, 80 Me. 111, 6 Am. St. 162, 13 A. 132; Turner v. Williams, 202 Mass. 500, 132 Am. St. 511, 89 N.E. 110, 24 L. R. A., N. S., 1199; St. Martin v. Hendershott, 82 Ore. 58, 151 P. 706, 160 P. 373; McLaughlin v. Sovereign Camp W. O. W., 97 Neb. 71, Ann. Cas. 1917A, 79, 149 N.W. 112, L. R. A. 1915B, 756; Wisconsin Trust Co. v. Wisconsin M. & F. Ins. Co., 105 Wis. 464, 81 N.W. 642; Davie v. Briggs, 97 U.S. 628, 24 L.Ed. 1086; Whiteley v. Equitable Life Assur. Soc., 72 Wis. 170, 39 N.W. 369; Nepean v. Doe, 2 Mees. & W. 913, 150 Eng. Reprint, 1029.)

If the evidence warrants a finding that death occurred at an earlier date than seven years, a finding to such effect will stand. ( Tisdale v. Connecticut Mut. Life Ins. Co., 26 Iowa 170, 96 Am. Dec. 136; Hancock v. American Life Ins. Co., 62 Mo. 26; Lancaster v. Washington Life Ins. Co., 62 Mo. 121; Cox v. Ellsworth, 18 Neb. 664, 53 Am. Rep. 827, 26 N.W. 460; Caldwell v. Modern Woodmen, 89 Kan. 11, 130 P. 642.)

The provision in the by-laws which attempts to defeat recovery in such a case as this, and the limitation provision in the certificate, are null and void, and contravene the law of this forum. (Douville v. Pacific Coast Casualty Co., 25 Idaho 396, Ann. Cas. 1917A, 112, 138 P. 506; Huber v. St. Joseph's Hospital, 11 Idaho 631, 83 P. 768; 1 Bacon on Benefit Societies and Life Insurance, p. 164.)

If a corporation undertakes to make by-laws in contravention of the statute, they are ultra vires and of no effect. ( Brower v. Supreme Lodge National Reserve Assn., 74 Mo.App. 490; Magner v. Mutual Life Assn., 17 A.D. 13, 44 N.Y.S. 862.)

RICE, J. Budge, C. J., and Morgan, J., concur.

OPINION

RICE, J.

This is an action brought by Laura B. Gaffney, executrix of the will of Margaret Smith, deceased, against the Royal Neighbors of America, a fraternal beneficiary insurance society, upon a benefit certificate issued by the society on August 28, 1908 to one Grace Wiley, by the terms of which it was agreed that upon the death of the said Grace Wiley, subject to certain conditions named in the contract, the society would pay to Margaret Smith, in case she survived Grace Wiley, the sum of $ 2,000. Margaret Smith died July 17, 1909. Dues were paid on the certificate until ...

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