De Lorenzo v. Lodge

• Decision Date: 22 June 1936
• Citation: 268 N.W. 217,222 Wis. 141
• Parties: DE LORENZO v. SUPREME LODGE, K. P. ET AL.
• Court: Wisconsin Supreme Court

222 Wis. 141

268 N.W. 217

DE LORENZO

v.SUPREME LODGE, K. P. ET AL.

Supreme Court of Wisconsin.

June 22, 1936.

Appeal from a judgment of the Circuit Court for Milwaukee County; Gustav G. Gehrz, Judge.

Action by Lillian De Lorenzo against the Supreme Lodge, Knights of Pythias, and another. From a judgment for plaintiff, defendants appeal.--[By Editorial Staff.]

Affirmed.

This appeal is from a judgment of the circuit court for Milwaukee county entered July 22, 1935, in favor of the respondent and against the appellants for the sum of $2,398.20. The action was upon an insurance certificate issued by the Supreme Lodge, Knights of Pythias, to Nicholas De Lorenzo, husband of the plaintiff, on October 11, 1920. It provided that in the event of the death of Nicholas De Lorenzo from any cause whatsoever, while said policy was in full force and effect, it would pay to the respondent (plaintiff) named therein as beneficiary the sum of $2,000 upon receipt and approval of satisfactory proofs of the fact and cause of death of the insured.

It is alleged on information and belief that the assured, Nicholas De Lorenzo, died May 3, 1925; that on said date he left his place of business to go to his home according to his usual custom; that he never reached his home, but disappeared, and although an intense and widespread search was made for him, he has never been heard from nor has his body ever been recovered. It is further alleged that after the expiration of seven years the respondent delivered to each of the defendants proofs of death as required by the certificate and demanded payment of the full amount due her as beneficiary.

The case was tried to the court and jury. The two following questions were answered as indicated:

“First question: At the time of the commencement of this action (January 4, 1933) was Nicholas De Lorenzo dead? Answer: (By the court) Yes.

Second question: Find the time, or date, when Nicholas De Lorenzo departed this life? Answer: May 3, 1925.”

The trial court gave judgment in favor of the respondent in the sum of $2,000 with interest from September 28, 1932, being the date when proofs of death were furnished the defendant United Mutual Life Insurance Company, which had assumed all obligations of its codefendant and had become the successor of the latter in its insurance activities.

The material facts will be stated in the opinion.

S. H. Esarey, of Indianapolis, Ind., and Wheeler & Witte of Milwaukee, for appellants.

McGovern, Curtis & Devos, of Milwaukee, for respondent.

MARTIN, Justice.

The defendant Supreme Lodge, Knights of Pythias, was created by special act of Congress on June 29, 1894, 28 Stat. 96, as a corporation entitled to use and exercise all the powers, rights, and privileges incidental to fraternal and benevolent corporations within the District of Columbia. The act provides that: “Said corporation shall have a constitution, and shall have power to amend the same at pleasure: Provided, That such constitution or amendments thereof do not conflict with the laws of the United States or of any State.” The purposes of the corporation were fraternal and benevolent. By Act of Congress approved April 12, 1930, 46 Stat. 158, the insurance department was separated from the fraternal activities of the Supreme Lodge.

By appropiate resolutions duly adopted by the Supreme Lodge, Knights of Pythias, it was provided that the insurance activities continue as a separate and distinct corporation under the name of United Mutual Life Insurance Company. It was further provided that: “Said United Mutual Life Insurance Company shall be subject to and shall assume, carry out, fulfill, and pay all liabilities, obligations, responsibilities and contracts connected with and arising from said insurance activities of said Supreme Lodge, Knights of Pythias.” It was further provided that the principal office and place of business of said United Mutual Life Insurance Company was to be at Indianapolis, Ind., and that said Mutual Life Insurance Company “shall be conducted and operated as a mutual, legal reserve life insurance company solely for the benefit of its members or policyholders, and not for profit, subject to the laws of the District of Columbia governing mutual, legal reserve life insurance companies and similar laws of other states or countries where it may seek license to carry on its business.” It was duly licensed and authorized to transact its business in the state of Wisconsin.

A further resolution provided: “Nothing herein contained is intended nor shall be construed to change, modify, impair, alter or amend the provisions of certificates and contracts now outstanding, and such certificates and contracts shall remain in full force and effect subject only to the right of said United Mutual Life Insurance Company and such insured members or any of them mutually to agree upon such changes in such certificates and contracts as may from time to time seem expedient to the parties.” In March, 1933, the appellant insurance company was incorporated under the laws of the state of Indiana. The act of the General Assembly of the State of Indiana, approved March 11, 1933 (Acts 1933, c. 267), authorizing the reincorporation of foreign insurance companies under the laws of that state, provides: “Nothing contained herein, or authorized hereby, shall impair, or operate to impair, the obligations of any contract existing at the time of the creation of the new corporation, but such new corporation shall be subject to and shall assume, carry out, fulfill, and pay all liabilities, obligations, responsibilities, and contracts connected with and arising out of its business prior to such reincorporation.” Section 8.

The certificate of membership issued to respondent's husband provided: “(2) The charter, all the laws, rules and regulations of the society governing the insurance department now in force and as the same may be hereafter changed, altered, added to, amended and repealed, together with said application contained in parts 1 and 2, and any subsequently made applications that may be accepted respecting this certificate, and this certificate consisting of pages 1, 2, 3, 4, and 5, shall comprise the contract between the member and the society.”

A by-law of the lodge, in force when the membership certificate was issued, provided: “(488) The laws of the order, as herein enacted, with any and all amendments thereto hereafter enacted by the supreme lodge, with all rules and regulations of the board of control as the same exist or may from time to time be adopted, shall be and constitute part of the contract of insurance between the members of the insurance department and such department, and shall be binding upon such members.”

A further by-law, in force at the time the certificate in question was applied for and granted, governing the insurance department provided: “(514) No lapse of time nor absence or disappearance on the part of any member of the insurance department without proof of the actual death of such member while in good standing, shall entitle his beneficiary to recover the amount of his certificate, except as hereinafter provided. The disappearance or long continued absence of any member unheard of, shall not be regarded as evidence of death nor give any right to recover on any benefit certificate issued in the insurance department until the full term of the member's expectancy, according to the American Expectancy Table of Mortality, has expired within the life of the certificate in question, and this statute shall be in full force and effect, any statute of any state or country, or rule of the common law of any state or country to the contrary. The term ‘within the life of the certificate,’ as here used is meant that the certificate has not lapsed nor forfeited, and that all payments and assessments required by the board under same have been paid.”

In August, 1924, the Supreme Lodge enacted the following by-law: “(553 (b) ) Insurance, as provided for by this society, shall not cover cases of disappearance. Disappearance is hereby defined to be the continued, unexplained absence of the insured within the period of seven years from date of disappearance, and the continued absence of the insured whether explained or unexplained, for a period of seven years or more than seven years from date of disappearance. In such cases, the beneficiary shall be entitled at his or her...