Lewine v. Supreme Lodge K. of P. of W.

• Decision Date: 05 February 1907
• Citation: 99 S.W. 821,122 Mo. App. 547
• Parties: LEWINE et al. v. SUPREME LODGE KNIGHTS OF PYTHIAS OF THE WORLD.
• Court: Missouri Court of Appeals

99 S.W. 821

122 Mo. App. 547

LEWINE et al. v. SUPREME LODGE KNIGHTS OF PYTHIAS OF THE WORLD.

St. Louis Court of Appeals. Missouri.

February 5, 1907.

INSURANCE — BENEFICIAL LIFE INSURANCE — FORFEITURES—SUICIDE.

Where, when one made application for and obtained of a beneficial association a certificate of life insurance, there was no provision in the constitution or by-laws of the association in regard to suicide, and no reference was made thereto in the application or certificate, the provisions in the application and certificate that such member shall "be governed" and his contract shall "be controlled" by all laws, rules, and regulations of the association then in force or that might be thereafter enacted did not authorize a subsequent by-law reducing the amount of recovery in case of suicide; forfeiture of a vested right not being authorized, unless it clearly appears that such was the result that the party against whom the forfeiture is sought to be invoked had in contemplation and intended when entering into the contract.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by Reuben Lewine and another, by Jesse A. Wolford, their next friend, against the Supreme Lodge Knights of Pythias of the World. Judgment for plaintiffs. Defendant appeals. Affirmed.

The petition and answer are extended, and, although the appeal is from, and seeks a review of, the action of the circuit court in sustaining a motion for judgment on the pleadings, we will refrain from incorporating them in the opinion. To copy these documents in full would tend more to obscure the material matter in controversy beneath an abundance of averment than to enlighten the reader. We are persuaded that the facts material to an intelligent disposition of this controversy may be recited with a greater degree of brevity and precision than can be had by adopting another course. In substance the facts are: The plaintiffs sue the defendant, an incorporated beneficial association, on its certificate of life insurance issued to and accepted by their father, Charles Lewine, December 22, 1890, in which certificate these plaintiffs, children of the said Lewine, are the designated beneficiaries of the fund therein mentioned. The petition sets out the certificate in hæc verba, and by proper allegation avers that the said parent, having duly complied with all the terms and conditions of the contract therein mentioned, departed this life June 13, 1905, while said certificate was in full force and effect, and that in due time they furnished defendant with proper proofs of the death of said Charles Lewine, etc., and otherwise duly performed all conditions on their part required by said contract, demanded payment thereon from the defendant, etc., which was refused. To the cause of action stated the defense is the suicide of the insured. The facts relevant to this defense appearing from the admissions and allegations in the answer are that there was no provision in the application of plaintiff, nor in the certificate, constitution, or by-laws of the defendant, at the time plaintiff became a member and the certificate was issued to him, pertaining to suicide. Several years thereafter a by-law on suicide was duly adopted by the association, however, and this by-law underwent several revisions, until finally it was amended by the Grand Lodge of the order duly assembled in August, 1896, and, as amended, provides in substance that if the death of the member "heretofore" or "hereafter" admitted "shall result from suicide, either voluntary or involuntary, whether such member shall be sane or insane at the time * * *" then "the amount paid upon such member's certificate shal be a sum only in proportion to the whole amount as a matured life expectancy is to the entire expectancy at the date of admittance to the Endowment Rank—expectation of life based upon the American Experience Table of Mortality in force at the time of such death to govern." It is alleged that the insured, "Charles Lewine, on the 13th day of June, 1905, took his own life or committed suicide by cutting his throat with a knife, purposely intending to take his own life."

It appears that in his application on which the certificate was issued, Charles Lewine subscribed and agreed as follows: "I here-by agree that I will punctually pay all dues and assessments for which I may become liable, and that I will be governed, and this contract shall be controlled, by all the laws, rules, and regulations of the order governing this rank now in force or that may hereafter be enacted by the Supreme Lodge Knights of Pythias of the World, or submit to the penalties therein contained, to all of which I willingly and freely subscribe." From the certificate, as set out in the petition, it appears that it was issued, among other things, "in consideration of the representations and declarations made in his application, * * * which application is made a part of this contract, * * * and in consideration of * * * and the full compliance with all laws governing this rank now in force or that may hereafter be enacted by the Supreme Lodge, * * * the sum of two thousand dollars will be paid * * * to Reuben and Heyman Lewine, his sons; * * * provided, further, that at the time of the death of the said brother the proceeds of one assessment on all members of the Endowment Rank shall not be sufficient to pay in full the maximum amount of endowment held under this certificate, then there shall be paid an amount equal to the proceeds of one assessment on all regular members of the Endowment Rank, less 10 per cent. for expenses, and the payment of such sum to the beneficiaries," etc., "shall be in full," etc. It is further provided therein: "And it is understood and agreed that any violation of the within-mentioned conditions or the requirements of the laws in force governing this rank shall render this certificate and all claims null and void." The answer avers that inasmuch as the deceased agreed in his application to be "governed," and that his contract should be "controlled," by future enacted laws, and that the certificate shows on its face that it was issued in consideration of those agreements on his part, and that he was obligated therein to full compliance with all laws now in force or that may hereafter be enacted, both deceased and his beneficiaries, these plaintiffs, are obligated by the subsequent by-law dealing with suicide, and therefore plaintiffs are entitled to recover such sum only in proportion to the whole amount as a matured life expectancy is to the whole expectancy at the date the member was admitted to the Endowment Rank, as mentioned, and to be determined as in such subsequent by-law indicated.

The plaintiffs filed no replication denying the allegations of the answer; but, on the contrary, filed a motion for judgment on the pleadings in the nature of a demurrer to the answer, which operated, of course, to admit the material facts well pleaded therein to be true. This motion the court sustained, and entered judgment for the plaintiffs against the defendant for $2,079 and costs. After unsuccessful motions for a review in the trial court, the case comes here by appeal.

R. P. & C. B. Williams, for appellant. F. H. Bacon, for respondents.

NORTONI, J. (after stating the facts).

There being no allegation in the answer that one assessment on the membership was insufficient to render the maximum amount of $2,000 mentioned in the certificate, this feature of the contract is eliminated from consideration, and it therefore follows that Charles Lewine, the insured member, having committed suicide, these plaintiffs, beneficiaries, are entitled to receive either the maximum amount of $2,000 mentioned in the certificate or the lesser amount provided for in the subsequent by-law on the subject of suicide. The lesser amount is averred to be $853.15. The record, therefore, presents but one question calling for the opinion of the court, and that is: Can the original contract of insurance, and the indemnity therein provided, be thus modified by the adoption and retrospective operation of a subsequent by-law on suicide, without the express assent of the insured member, or did he consent to such modification by the language employed in his contract of membership and insurance? The learned counsel for appellant point us to the language of his application, wherein he agreed that he would "be governed" and his contract should "be controlled" by all laws, etc., then in force or which might thereafter be enacted, or submit to the penalties therein contained, and argue that this agreement on his part is parcel of the consideration upon which the certificate was issued to him, wherein, by his acceptance, he agreed to "a full compliance with all the laws governing the rank then in force or that might thereafter be enacted"; and it is insisted that from this it is manifest Charles Lewine agreed in advance that his contract might be thus modified and altered. Our attention in this connection is especially invited to numerous decisions of the Supreme and Appellate Courts of Illinois where, in suits against this identical defendant on the identical language here involved, the member was held to have agreed in advance to the future material modification of his insurance contract by such subsequent enactments. These cases are Supreme Lodge K. of P. v. Trebbe, 179 Ill. 348, 53 N. E. 730, 70 Am. St. Rep. 120; Supreme Lodge K. of P. v. Kutscher, 179 Ill. 340, 53 N. E. 620, 70 Am. St. Rep. 115; Supreme Lodge K. of P. v. Clarke, 88 Ill. App. 600. And we are cited as well to the case of Morton v. Royal Tribe of Joseph, 93 Mo. App. 68, wherein it seems that this court so held.

Whatever the state of the adjudicated law on this subject may be elsewhere, the matter must be determined here by the proper application of sound principle and a firm adherence to the doctrine of this court. Now, if there be any proposition settled...